{"id":184252,"date":"1980-04-23T00:00:00","date_gmt":"1980-04-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamal-kanti-dutta-and-ors-vs-union-of-india-and-ors-on-23-april-1980"},"modified":"2015-03-27T14:10:15","modified_gmt":"2015-03-27T08:40:15","slug":"kamal-kanti-dutta-and-ors-vs-union-of-india-and-ors-on-23-april-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamal-kanti-dutta-and-ors-vs-union-of-india-and-ors-on-23-april-1980","title":{"rendered":"Kamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980<\/div>\n
Equivalent citations: 1980 AIR 2056, \t\t 1980 SCR (3) 811<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V. (Cj), Untwalia, N.L., Kailasam, P.S., Desai, D.A., Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nKAMAL KANTI DUTTA AND ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT23\/04\/1980\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nUNTWALIA, N.L.\nKAILASAM, P.S.\nDESAI, D.A.\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1980 AIR 2056\t\t  1980 SCR  (3) 811\n 1980 SCC  (4)\t38\n CITATOR INFO :\n R\t    1986 SC1830\t (38,58)\n RF\t    1987 SC 386\t (14)\n RF\t    1989 SC1972\t (11)\n RF\t    1990 SC1106\t (9,10)\n\n\nACT:\n     Review of Judgments of the Supreme Court of India under\nArticle 137  of the  Constitution read with Order XXL of the\nSupreme Court  Rules, 1966-Petitions  filed under Article 32\nof  the\t  Constitution\tindirectly   invoking\tthe   review\njurisdiction and seeking a review of earlier decision of the\nCourts Held, there is no substance in the request.\n\n\n\nHEADNOTE:\n     With a view to improving the Income-tax administration,\nthe Government\tof India  in consultation  with the  Federal\nPublic\tService\t Commission  decided  to  reconstitute\tthen\nexisting income-tax  services, Class  I and  II.  Under\t the\nscheme of reorganisation of the services set out in a letter\ndated September\t 29, 1944 of the Government of India Finance\nDepartment, the\t central service  Class I  was to consist of\n(i) Commissioners of Income-Tax (ii) Assistant Commissioners\nof Income-Tax;\t(iii) Income-Tax  Officers Grade  I and (iv)\nIncome-Tax Officers Grade-II. Thus Income-Tax Officers Class\nI were to be of two grades, Grade I and II; while Income-Tax\nOfficers Class\tII were\t to consist  of one  grade,  namely,\nGrade III.  Clauses (a)\t to (e) of paragraph 2 of the letter\nprescribed the\tmode of\t recruitment to the various posts in\nClass I\t and Class II. Under Clause (d) recruitment to Class\nI Grade II was 20% by promotion from Class II, Grade III and\n80% by\tdirect recruitment  via Indian\tAudit  and  Accounts\nService etc.  examination. Rules  regulating recruitment  to\nthe Income-Tax\tOfficers (Class I, Grade II) service \"liable\nto alteration  from year  to year\" were published on May 26,\n1945, by  a resolution\tof the\tFinance\t (Central  Revenues)\nDepartment. Rule  3 provided  that recruitment\tto Class  I,\nGrade  II's   service  shall  be  made\t(1)  by\t competitive\nexamination held  in India in accordance with Part-II of the\nRules and  (ii) by  promotion on  the basis  of selection of\nGrade III  (Class II service, in accordance with Part III of\nthe Rules.  By Rule  4 of  the Government  was to determine,\nsubject to  the provisions  of Rule 3, the method or methods\nto be  employed for  the purpose  of filling  any particular\nvacancies, or such vacancies as may be required to be filled\nduring any  particular period,\tand the number of candidates\nto be recruited by such method. Part III of the Rules called\n(Recruitment by\t Promotion) provided  by paragraph  21\tthat\n\"recruitment by\t promotion shall  be made  by selection from\nGrade-III  Income-Tax  Officers\t (Class\t II  service)  after\nconsultation with  the Federal\tPublic Service\tand that  no\nofficer shall have any claim to such promotion as of right\".\n     By a  letter dated\t January 24,  1950 the Government of\nIndia laid  down certain rules of seniority : (a) as between\ndirect recruits;  (b) as  between  promotees  selected\tfrom\nClass II  and (c)  as between  direct recruits who completed\ntheir probation\t in a given year and the promotees appointed\nin the same year to Class I.\n812\n     On October 18, 1951 the Government of India addressed a\nletter\tto   all  the  Commissioners  of  Income-Tax  titled\n\"Income-Tax Officers,  Grade-II (Class-\t I service)-quota of\nvacancies filled by promotions\" wherein it was outlined that\nfor a period of 5 years in the first instance 66 and 2\/3 per\ncent of\t the vacancies\tin Class-I, Grade-II would be filled\nby direct  recruitment by a combined competitive examination\nand the\t remaining 33  and 1\/3\tper cent  on  the  basis  of\nselection by  promotion from  Grade-III (Class-II  service).\nAny surplus vacancies which could not be filled by promotion\nfor want  of suitable candidates would be added to the quota\nof vacancies to be filled by direct recruitment. By a letter\ndated September 5, 1952 the Government of India revised with\na retrospective\t effect the  Rules of  Seniority which\twere\nlaid down  on January 24, 1950. Rule 1 (f)(iii) as framed on\nJanuary 24, 1950 which was to the effect that \"the promotees\nwho have  been certified  by the  commission in any calendar\nyear shall  be senior  to all  direct recruits\twho complete\ntheir probation\t during that year or after and are confirmed\nwith effect  from a  date in that year or after\" was revised\non September  5, 1952  as \"officers  promoted in  accordance\nwith  the  recommendations  of\tthe  Departmental  Promotion\nCommittee  before  the\tnext  sitting  of  the\tDepartmental\nPromotion Committee  shall be  senior to all direct recruits\nappointed on  the results  of the  examinations held  by the\nUnion Public  Service Commission during the calendar year in\nwhich the  Departmental Promotion  Committee met  during the\nthree previous years\". Rule 1(f)(iv) of the 1952 Rules dealt\nwith a\tspecial situation  in  which  an  officer  initially\nappointed to  Class II\tservice was  given seniority  in the\nsame manner as a departmental promotee, if subsequent to his\npassing the  departmental examination  he was  appointed  to\nClass I\t on the results of the competitive examination. Rule\n4 of  Chapter IX  of the  Rules of  Promotion of the Central\nBoard of  Revenue Office  Procedure Manual  states that\t the\nprescribed minimum service for an officer of Class-I, Grade-\nII for\tpromotion to  Grade-I is  5 years  gazetted  service\nincluding one year in Class-I, Grade-II. For a promotee from\nClass-II the  minimum period  of service  for  promotion  to\nClass-I, Grade-I would be actually 4 years service in Class-\nII and one year service in Class-I, Grade-II.\n     In an  appeal arising out of Writ Petition No. 189-D of\n1962 filed  by one S. G. Jai Singhani (who is respondent No.\n358 in\tWrit Petition No. 66 of 1974 and respondent No. 5 in\nWrit Petition  No. 4146\t of 1978), a constitutional Bench of\nthis Court  held :  (i) Rules  1(f)(iii)  and  (iv)  of\t the\nSeniority Rules\t framed in  1952 did not violate Articles 14\nand 16 since they were based on a reasonable classification;\n(ii) Rule  4 of\t Chapter IX  of the Central Board of Revenue\nOffice Procedure  Manual did  not lead to any discrimination\nas between  direct recruits  and promotees, since the object\nof the\trule was  really to  carry out\tthe policy  of\tRule\n1(f)(iii) of  the Rules\t of Seniority and not allow it to be\ndefeated by  the recruitment of 5 years' service in Class-I,\nGrade-II itself,  before a  person could  be considered\t for\npromotion to  Class-I, Grade-I;\t (iii) Rule 4 of the Income-\nTax Officers  (Class-I, Grade-II)  Service Recruitment Rules\nwas a  statutory rule  to which a statutory duty was cast on\nthe Government\tto determine  the method  or methods  to  be\nemployed for the purpose of filling of the vacancies and the\nnumber of  candidates to  be recruited\tby each\t method; and\nthat though  in the  letter of the Government of India dated\nOctober 18,  1951 there was no specific reference to Rule 4,\nthe quota  fixed by  that letter must be deemed to have been\nfixed in  exercise of  the statutory  power given by Rule 4.\nThere was,  therefore, no  discretion left to the Government\nof\n813\nIndia to alter that quota according to the exigencies of the\nsituation or  to deviate  from the  quota in  any particular\nyear at its own will and pleasure. The quota rule, according\nto the\tCourt, was  linked up  with the\t Seniority Rule\t and\nunless it  was strictly\t observed in  practice it  would  be\ndifficult to  hold that the seniority rule contained in rule\nl(f)(iii) was not unreasonable and did not offend Article 16\nof the\tConstitution. The  Court suggested  that for  future\nyears the  roster system  should be  adopted by\t framing  an\nappropriate rule  for working  out  the\t quota\tbetween\t the\ndirect recruits and the promotees and that a roster n should\nbe maintained  indicating the  order in\t which\tappointments\nwere  made   by\t direct\t recruitment  and  by  promotion  in\naccordance with\t the percentages  fixed under  the statutory\nrule  for  each\t method\t of  recruitment.  Thus\t the  direct\nrecruits succeeded  substantially in  their contentions, the\nquota  rule   acquired\tstatutory   force,  appointments  of\npromotees in  excess of\t the quota  became bad and it became\nobligatory for\tthe Government\tto prepare a fresh seniority\nlist. Promotees\t found to  have been  appointed in excess of\nthe quota  admissible to  promoteeS had naturally to go down\nin the final gradation of seniority.\n     On July  15,  1968\t the  Government  prepared  a  fresh\nseniority list\tand filed it in the Supreme Court. That list\nfailed to  satisfy promotees  as well  as  direct  recruits.\nWhether this  seniority list  was collect  and in accordance\nwith the  mandamus which  was issued  by this Court in S. G.\nJai Singhani`s\tcase,  [1967]  2  S.C.R.  703  came  up\t for\nconsideration in  four appeals\twhich were  disposed of by a\ncommon judgment\t dated August  16, 1972\t reported as  Bishan\nSarup Gupta v. Union of India (first Gupta's case) in [1975]\nSuppl. S.C.R. 491. The Court was also called upon to examine\nthe  correctness  of  seven  principles\t enumerated  in\t the\nGovernment letter  dated July  15, 1968 governing seniority.\nThe first principle was accepted as good. The second and the\nthird principles  were held  to be partially incorrect in so\nfor as they excluded reference to all the promotees of 1952.\nThe Court held that the promotees of 1952 should be referred\nto in  the seniority  list whether they are affected or not,\nthe object  being the  ascertainment of\t excess\t promotions.\nThis Court further held that the rule dated October 18, 1951\nwas not\t concerned with\t the Constitution  of the  cadre but\n\"was concerned\twith how  permanent  vacancies\twere  to  be\nfilled\" and,  therefore, the  promotees would be entitled to\n1\/3 of\tthe vacancies  in any particular year whether or not\nthere was  direct recruitment  by competitive examination in\nthat year.  This ratio\tof 2  :1 between the direct recruits\nand the promotees could not be made to depend on whether any\ndirect recruits\t were appointed\t in any particular year. It,\ntherefore,  became   essential\tto   determine\tthe   actual\nvacancies in  the cadre\t but the  Government put forward the\nplea even  in this  case as  in Jai  Singhani's that  it was\nimpossible for them to give the exact figure of vacancies in\nany particular\tyear. According to the Court, when the quota\nrule  referred\t to  vacancies\tit  was\t implicit  that\t the\nvacancies are  those which  the Government wanted to fill up\nwhatever may be the actual number of vacancies available for\nbeing filled  up. Any  number of  posts among  the promotees\nmore than  1\/3 of  the total  number of\t appointments in the\nparticular year\t was considered to be in excess of the quota\navailable for  promotees. The  Court rejected  the  argument\nthat the  quota rule  which is\tco-related to  vacancies  of\npermanent posts\t only and  not to  those in temporary posts.\nWhile upholding the weightage allowed under Rule I (f) (iii)\nto Class-II  officers promoted\tto  Class-l,  Grade-II,\t the\nCourt also  held that  even after  1956, the  Government was\nentitled by  reason of\tRule 4\tof the\tRecruitment Rules of\n1945 to\t follow the quota rule of 1951 as a rough guideline,\n\"without going\tthrough the  trouble of\t putting the same on\nrecord in so many words\" and\n814\nthat in\t the normal  course the\t Government was\t entitled to\nprepare\t the   seniority  list\ttill  the  end\tof  1958  in\naccordance with\t the quota  rule of  1951. In  regard to the\nposition after\tyear 1958  the Court  came to the conclusion\nthat the  quota rule  ceased to\t apply and came to an end on\nJanuary 16, 1959, when the sanction to upgrade 100 temporary\nposts in  Class-II, Grade-III to Class-I, Grade-II was given\nby the\tPresident. The\tseniority rule\tthen fell with quota\nrule. On  these\t considerations\t the  Court  held  that\t the\nseniority list. was valid in regard to promotions made up to\nJanuary 15,  1959 to the. extent that it was prepared on the\nbasis of  the quota  rule dated\t October 18,1951  read\twith\nSeniority Rule\tl(f)(iii). As  a corollary,  the  Court\t set\naside the  seniority list  of July 15, 1968 and directed the\nGovernment to  prepare a  fresh seniority list. The List for\nthe years  1955 to  January 15,\t 1959  was  directed  to  be\nprepared in accordance with the quota rule of 1951 read with\nSeniority Rule\tl(f) (iii).  The List  to be  effective from\nJanuary ]6,  1959 was  directed to be prepared in accordance\nwith the rules to be made afresh by the Government.\n     On February 9, 1973 the President made rules called the\nIncome-Tax (CIass-I) Service (Regulation of Seniority) Rules\n1973  under   Article  309   of\t the   Constitution   giving\nretrospective effect  from January 16, 1969. In pursuance of\nthe liberty  reserved to  the parties  under the Judgment in\nthe first  Gupta's case\t the validity  of the  new seniority\nrules was  challenged  by  the\tpromotees  once\t again.\t The\nchallenge was considered and repelled by the Court in Bishan\nSwarup Gupta  etc. v. Union of India and Ors.[1975] 1 S.C.R.\n104, second  Gupta's case.,  When the  new list of seniority\nwas prepared  by the  Government, in  accordance with  these\nrules, the  Government had  on its  hand  73  promotees\t who\nthough appointed  earlier between 1956 and 1958 had no quota\npost, for  their absorption.  The 73  promotees described as\n\"spill-overs on\t January 15,  1959\", as\t also those who were\npromoted subsequently  had to  be absorbed  in the  Service,\nwhich could  only be  done by  a special rule framed in that\nbehalf. The  new seniority  rule contained a formula for the\nabsorption OF  all promotees  with effect  from January\t 16,\n1959  in  posts\t allocated  to\tthem,  it  determined  their\nseniority inter\t se and last but not the least it determined\ntheir seniority qua the direct recruits appointed from 1959.\nThe Court  overruled the  objection of\tthe '73'  spill-over\npromotees that since in the first Gupta's case the Court had\ndirected that they should be absorbed on a \"priority basis\".\nall of\tthem should have been shown in the seniority list as\nhaving been  pointed on\t January 16,  1959 en  bloc and\t the\ndirect\trecruits  for  that  year  should  have\t been  shown\nthereafter. It\twas explained  that by use of the expression\n\"priority basis\"  what was  meant by  the Court was that the\nposition or  the spill-over  promotees as seniors should not\nbe prejudiced  by claims  made by  later  promotees  on\t the\nground that since the spill-over promotees were recruited in\nexcess of the quota, the later promotees whose promotion did\nnot violate  the quota rule had higher rights than those 73.\nThe  Court  further  held  that,  v  he\t the  73  spill-over\nappointments were made, there were no allocated or earmarked\nposts to  which those  promotees  could\t have  been  validly\nappointed. the ordinary consequence of which would have been\ntheir revision to Class II posts which they originally held.\nSo long\t as the\t quota rule was in existence appointments in\nexcess of  the quota, though invalid when made, were atleast\nliable to  be regularised in subsequent years when vacancies\nwere available.\t to the\t promotees as  a consequence  of the\nquota rule  But. Once  the quota  rule ceased  to  exist  on\nJanuary 16, 1959, any possibility of the excess appointments\nof the promotees being regularised vanished. It was in order\n815\nto overcome  this injustice  to the  promotees, that the new\nrule was framed by the Government. The new rule was thus not\nonly the  direct outcome of the judgment or the Court in the\nIst Gupta  case, but  it was followed on the very principles\non which  the Income-tax  Service had  been constituted. The\nCourt finally  said that  it had  also to be remembered that\npromoteeS appointed  from  January  16,\t 1959  onwards\twere\nappointed on an officiating or ad hoc basis with notice that\nthe question  of their\tseniority was  still undecided. This\ncircumstance coupled with the absence of clear allocation of\nposts, made  it impossible for the promotees to lay claim to\nseniority and  contend that  they  were\t deprived  of  their\nnatural seniority in violation of Article 16.\n     The petitioners  who were\tpromotee Income-Tax officers\nClass-I, Grade-II  prayed for reconsideration of these three\ndecisions S.  G. Jai  Singhani v.  Union of  India and\tAnr.\n[1967] 2  S.C.R. 703;  Bishan Swarup Gupta v. Union of India\nand  Ors.<\/a>(First\t Gupta's  case),[1975]\tSuppl.\tS.C.R.\t495;\nBishan Swarup  Gupta etc. v. Union of India and ors. (Second\nGuptas case)  [1975] S.C.R.  104 and to the extent S. G. Jai\nSinghani's case\t is relied  upon in  Union of India v. Malji\nJangamayya  etc.,[1977]\t  2  S.C.R.  28.  On  the  following\ngrounds:\n     1.\t The  Conclusion  that\tRule  4\t of  the  Income-Tax\nofficers (Class-l.  Grade-II) Service  Recruitment Rules  is\nstatutory  and,\t therefore,  the  quota\t prescribed  by\t the\nGovernment of  India for  recruitment to Income-Tax officers\nClass-I, Grade-II in exercise of the power conferred by Rule\n4  would   be  statutory,  proceeds  on\t an  assumption\t not\nwarranted by  the provisions of law bearing on the point and\nif both\t Rule 4\t and  the  quota  presumably  prescribed  in\nexercise of  the power\tconferred by Rule 4 are not shown to\nbe statutory;  the foundation  of which the edifice in S. G.\nJai Singhani's\tcase rests is knocked down because it can be\ndemonstrably established  that neither rule 4 nor the quota,\nprescribed thereunder  was statuary  in character but was at\nbest an administrative instruction.\n     2. After  the Court  on an\t interpretation of the quota\nrule held that the quota was related to vacancies arising in\nthe grade every year, the conclusion reached did not conform\nto this\t finding but  accommodated the\tso-called  inability\n(now shown  to be  factually incorrect) of the Government of\nIndia to  give information  to the Court about the vacancies\nin the\tgrade every  year with\tthe result  that  the  whole\ncalculation of spill-over is vitiated.\n     3. The  mandamus issued  in  Jai  Singhani's  case\t was\nmisinterpreted by  the Government  because even if the quota\nwas statutory  it was  operative only  between 1951 and 1956\nbut the\t Government interpreted the mandamus to be operative\nbeyond 1956  and upto  1967 which misinterpretation has been\npointed out in the first Gupta's case.\n     4. In  the first  Gupta's case  while holding  that the\nmandamus directing,  to treat  the quota  statutory  beyond.\n1956 was  not justified yet till January 16. 1959, the Court\nitself indirectly accepted the quota rule as a guideline and\ntreated that there was a spill-over of 73 promotees. If Rule\n4 was not statutory and consequently the quota prescribed in\nexercise of the power which had outlived its prescribed span\nof life\t in 1956  could not  be\t brought  in  to  treat\t any\nappointment as\tinvalid on  the ground\tthat  there  was  no\nallocated post\tfor those  appointees treated  as spill-over\nbecause under  Rule 4  itself the  Government had  power  to\ndetermine the  method or  methods to  be  employed  for\t the\npurpose of\n816\nfilling in  particular vacancies or such vacancies as may be\nrequired to  be filled\tin during  any particular period and\nthe number of candidates to he recruited by each method.\n     5. The  action of the Government of upgrading 214 posts\nbetween 1959  and 1962\tfrom Class-II,\tGrade-II to Class I,\nGrade II was not open to question as at that stage there was\nno quota  rule and  Rule 4  enabled the\t Government to\tmake\nrecruitment from  either of  the two  sources in exercise of\nits executive  power. In  regard to  the second Gupta's case\nthe Court  introduced quota rule retrospectively by the back\ndoor which  is impermissible  and its  operation  manifestly\nestablishes  its  utter\t unfairness  inasmuch  as  a  direct\nrecruit nor  any where in the department or may be a student\nmay secure a march-over a promotee which has been working in\nClass-I, Grade-II.\n     Dismissing the petitions the Court,\n^\n     HELD: Per\tChandrachud, C.J.  (On\tbehalf\tof  N.\tL  .\nUntawalia, P.  S Kailasam,  E. S.  Venkataramaiah,  JJ.\t and\nhimself). (Majority view)\n     i. A  consideration of  certain historic  facts in this\ncase makes  it clear  that there  is  no  substance  in\t the\nrequest made  for a  review of the decisions in Jai Singhani\nv. Union  of India  and Ors.,  [1967] 2\t S.C.R. 703;  Bishan\nSwarup Gupta  v. Union\tof India and ors. (Ist Gupta's<\/a> case)\n[1975] supplementary  S.C.R. 491;  Bishan  Swarup  Gupta  v.\nUnion of  India &  Ors.<\/a>; Second Gupta's case [1975] 1 S.C.R.\n104 and\t Union of  India v.  Malji Jangamayya[1977] 2 S.C.R.\n28. [840 E-F]\n     For  nearly  a.  decade  after  1950,  appointments  of\npromotees were\tmade far in excess of the quota available to\nthem. So long as the quota rule operated. it was possible to\nregularise their  appointments when posts within their quota\nbecame\tavailable   in\t later\t years.\t  But\ta   somewhat\nunprecedented situation\t arose by  the upgrading of Class II\nposts to  Class I  grade II-100\t of them on January 16, 1959\nand 114 on December 9, 1960. This massive upgrading of posts\nbrought about  a collapse  of  the  quota  rule.  Subsequent\nabsorption in  posts which became available for being filled\nup later  really means regularisation of appointments, which\nis possible  provided there  is no  excessive deviation from\nthe quota rule. [840 G-H, 841 A]\n     It is  true that  no blame\t can be laid at the doors of\nthe promotees  on the  score that  they\t were  appointed  in\nexcess of  tho\tquota  available  to  them.  Perhaps,  their\nappointments must  even have  enabled the  administration to\ntide over  administrative stale-mate.  But the tough problem\nwhich the  administration has  to face is that whereas it is\nnecessary to  recognise and  protect the claims of promotees\nwho were  appointed in\texcess of  their quota,\t is  equally\nnecessary to  ensure that  the direct recruits do not suffer\nan nude\t set-back in  service on account of the appointments\nof promotees.  The conflicting\tclaims of the two components\nof Service,  both having  an importance\t of their  own, have\ntherefore to be reconciled. It was with that object that the\nrules have  been modified  from time  to time. The judgments\nrendered by  this Court\t in the\t aforesaid four\t cases show,\nwithout a  shadow doubt, how every effort was made to ensure\nthat no\t hardship or  injustice is  caused to  the promotees\nmerely because their appointments exceeded their quota. [841\nA-C]\n     2. It  is not  correct to\tsay that the judgment in Jai\nSinghani was  based on\ta concession  or that the Court felt\ncompelled to draw the particular conclusions\n817\ntherein because\t of the\t inability or refusal of the Finance\nMinistry to  produce A the relevant files. The Court adopted\nwhat it considered in the circumstances to be a satisfactory\nand  scientific\t  method  of   ascertaining  the  number  of\nvacancies available  for being\tfile  up.  It  came  to\t the\nconclusion that\t the number  of actual\tappointments  should\ndetermine the  number of  vacancies available  which  was  a\nperfectly legitimate  conclusion to  draw. In  the grey area\nwhere service  rules operate,  more than  one view is always\npossible  to  take  without  sacrificing  either  reason  or\ncommonsense but\t the ultimate  choice has  to be necessarily\nconditioned by several considerations ensuring justice to as\nmany as possible and injustice to as few. There was no error\nin the\tconclusion in  Jai Singhanni  that  Rule  4  of\t the\nRecruitment Rules  was a statutory rule Subsequent decisions\nwould show  that there\twas hardly  any dispute\t between the\nparties, at  later stages  at any  rate, that  Rule 4  was a\nstatutory rule. [841 D-G]\n     3. No  doubt, the promotees should not be penalised for\nthe mere  reason that those of them who were appointed after\nJanuary 16,  1959 were appointed on an officiating or ad hoc\nbasis and  had clear  notice  that  the\t question  of  their\nseniority was  still undecided.\t The circumstances attendant\nupon  their   appointments  cannot,   however,\t be   wholly\noverlooked  in\t determining  whether\tthe   constitutional\nconstraints have been over-stepped. [841 H, 842 A]\n     4. It  is not  safe to  test the constitutionality of a\nservice rule  on the touch stone of fortunes of individuals.\nNo matter  with what  care, objectivity and foresight a rule\nis framed,  some hardship,  inconvenience  or  injustice  is\nbound  to  result  to  some  members  of  the  service.\t The\nparamount consideration is the reconciliation of conflicting\nclaims of  two important  constituents of  Service,  one  of\nwhich brings  fresh blood  and the  other mature experience.\n[842 A-C]\n     5. Though\tthe promotees  submitted in the Second Gupta\ncase that  the new  seniority rule  was unfair to them, they\nwere unable  to put forward any rational alternative. On the\ncontrary the counter-affidavit dated August 31, 1973 file in\nthe Second  Gupta case\tby Shri Mehra., the Deputy Secretary\nFinance, shows\tthe fullness  with which  the Government had\nconsulted all  possible interests while framing the impugned\nrules of seniority. The gamut of reasonable possibilities is\nfairly covered\tby the four alternatives referred to in Shri\nMehra's\t affidavit.  The  inconveniences  and  disadvantages\nflowing from  the first\t three\talternatives  would  be\t far\ngreater than  those flowing from the fourth. That is why the\nchoice ultimately fell on the fourth alternative under which\nthe seniority  between promotees  and  direct  recruits\t was\nfiled  alternately  on\ta  roster  system,  vacancies  being\nequally divided\t between promotees  and direct recruits, for\nthe entire  period from\t 1959 up-to-date. The observation of\nthe Court  in the  Second Gupta's case at page 119 shows how\ndifficult it  is to  solve the\tjig-saw\t puzzle\t of  service\ndisputes. [842 C-Hl G\n     6. The  report of\tthe 'Committee\ton petitions' of the\nRajya Sabha,  howsoever, sincerely motivated and fully drawn\ncannot be  given the  importance which the promotees seem to\nattach to  it. In  paragraph 16\t of its Report the Committee\ndoes refer  to certain\tfiles  but  those  files  appear  to\ncontain some  notions in  regard to  the direct\t recruitment\nonly.  The  Committee  has  given  a  table  of\t comparative\nappointments in\t paragraph 19  of its  Report but  it had to\nspeculate on  an important aspect of the matter, as is shown\nby its\town language,  that the\t table shows  the member  of\ndirect recruits\t which the Government wanted to take and \"on\nthe basis of which the promotees must have been given promo-\n818\ntions\". If  indeed the\trelevant files\twere produced before\nthe Committee, it would not have expressed its sense of deep\nshock and  resentment at  the disappearance  of\t the  files.\nFurther para  32 of  the Report shows that the Committee had\nto grope  in the  dark and  indulge in\ta certain  amount of\nspeculation on\tmatters\t under\tits  consideration.  In\t the\ncircumstances it  has done  as good a job as a Committee can\nand no\tfault need  to found  with it.\tBut nevertheless the\nsaid  Committee's   report  cannot   displace\tthe   Courts\njudgments. [842 H, &43 A-C]\n     Even  on\tmerits\tthere\tis  no\t justification\t for\nconsidering the\t judgments already  rendered by\t this  Court\ninasmuch as  no fresh facts were brought to notice by way of\ndiscovery of  new and important evidence which would justify\nreconsideration of  the decisions  already rendered  by this\nCourt after  the most  careful examination  of the competing\ncontentions. The  report of  the Rajya\tSabha  Committee  on\npetitions shows\t that  the  relevant  files  are  still\t not\ntraceable. [843 E-F, G-H, 844 A]\n     Per Desai, J. (contra )\n     1.\t  While,   no\tdoubt,\t the   Supreme\t Court\t has\nconstitutional rower  lo review\t its decision, it is a power\nto be  sparingly exercised  because any\t such review has the\ntendency to  unsettle questions\t which may have been finally\ndetermined. The\t Supreme Court\tdoes not  lightly  undertake\nreview of  its decisions  more especially  where conflicting\nclaims have  been settled  by the decision of this Court and\nthe whole  gamut may have to be gone through over again on a\nreconsideration of  the decision.  While exercising inherent\npower to  reconsideration and  review its  earlier decision,\nthe Supreme  Court would  naturally like  to, impose certain\nreasonable limitations\tand would  be reluctant to entertain\nplea  for   reconsideration  and   review  all\tits  earlier\ndecisions unless  it is\t satisfied that there are compelling\nand substantial\t reasons to  do so.  It is  general judicial\nexperience that\t in manners  of law  involving questions  of\nconstruing statutory or constitutional provisions, two views\nare often reasonably possible and when judicial approach has\nto make\t a choice between the two reasonable possible views,\nthe process  of decision  making is often very difficult and\ndelicate. [846 A-B, 847 C, G-H. 848 A-B]\n     In deciding  whether a  review is\tnecessary  when\t two\nviews are  possible it\twould not necessarily be an adequate\nreason for  such review and revision to hold that though the\nearlier view  is reasonably  possible view  the\t alternative\nview which  is pressed\ton the\tsubsequent occasion  is more\nreasonable. The\t Court's discretion should be guided by such\nconsideration whether  in the interest of public good or for\nany other  valid or  compulsive reason\tit is necessary that\nthe: earlier decision should be revised. [848 B-C]\n     Sajjan Singh  v. State  of Rajasthan,  [1965] 1  S.C.R.\n931; Keshav  Mills Co.\tLtd. v.\t commissioner of Income Tax,\nBombay North,  [1965] 2\t S.C.R. 90B  &\t921;  Manganese\t Ore\n(India) Ltd. v. The Regional Assistant Commissioner of Sales\nTax, Jabalpur,<\/a> [1976] 3 S.C.R. 99 applied,\n     2. Jai Singhani case proceeds on a concession that Rule\n4 and  the quota  prescribed by\t the Government referable to\nthe power  conferred by\t Rule 4 were statutory in character.\n[848 D-E]\n     Income-tax service\t was reconstituted  on September 29,\n1974.  The  Government\tof  India  classified  the  existing\nincome-tax service as Class I and Class II.\n819\nThe scheme  provided for  recruitment of income-tax officers\nClass I\t grade II  partly by  promotion and partly by direct\nrecruitment. The  scheme was  set out  in the  Government of\nIndia Finance  Department (Central  Revenues)  letter  dated\nSeptember  29,\t 1944.\tThe  quota  prescribed\ttherein\t has\nundergone a  revision at  a later date. The rules being Pre-\nconstitution Rules,  their source  must\t be  traced  to\t the\nGovernment of  India Act,  1935. Section 241 of the 1935 Act\nmade provision\tfor recruitment\t and conditions\t of service.\nSection\t 241   makes  it   clear  that\tthe  power  to\tmake\nappointments in\t the case of service of Federation and posts\nin  connection\twith  the  affairs  of\tthe  Federation\t was\nconferred on  the Governor-General  or such person as he may\ndirect. The power to make rules in this behalf was conferred\nby sub-section\t'' on the Governor-General or by some person\nor persons  authorised by  the Governor-General\t to make the\nrules fol  the purpose.\t But, the rules were not made either\nby the\tGovernor-General or  such person  authorised by him.\n'The rules  were made  by  the\tFinance\t Department  and  no\nmaterial was  placed to show that the persons or the persons\nwho made  the rules were authorised by the Governor-General,\nunder Section  241(2) of  the 1935  Act in  this behalf. The\nassumption made\t therefore, that  Rule 4  of the  Rules\t are\nstatutory and  that the\t quota prescribed in exercise of the\npower conferred\t by Rule  4 must be statutory is ill-founded\nThis knocks  out the  entire foundation\t of the\t judgment of\nthis  Court  in\t Jai  Singhani's  case\tbecause\t this  Court\nproceeded to  hold that\t as the\t quota\twas  statutory,\t any\nrecruitment made  in excess  of the  quota in any given year\nwould  be   invalid  and  at  best  can\t be  regularised  by\nrelegating such\t excess appointment  to the quota next year.\nIf Rule\t 4 and the quota referable to the power conferred by\nRule  4\t  were\tnot   statutory\t but   were  merely  execute\ninstructions, its violation would not render any appointment\nin excess  of it  invalid but at best would be irregular and\nin this\t case on a plain reading of Rule 4 it would not even\nbe irregular. [848 G-H, 849 A-E]\n     3. In  P. C. Sethi & Ors. v. Union of India & Ors.<\/a> this\nCourt held that in the absence of any statutory rules it was\nopen to\t the, Government  in exercise of its executive power\nto  issue   administrative  instructions   with\t regard\t  to\nconstitution and  recognition of service as long as there is\nno violation  of Articles  14 and 16 of the constitution. If\nthe present  Rule 4  enables  the  Government  to  prescribe\nmethod to  be employed\tfor the\t purpose of  filling, in any\nparticular vacancy  or such  vacancies as may be required to\nbe filled  in during any particular period and the number of\ncandidates to  be recruited  by each  method arid  if the so\ncalled quota  is not  statutory but  merely a guideline, the\nGovernment whenever  making appointments  would be acting in\nexercise of power conferred by Rule 4 which leaves it to the\ndiscretion, of\tthe Government\tto decide  from what  Source\nrecruitment should  be made  and what must be the quantum of\nvacancies that\tmust be\t filled in  at a given point of time\nand such  appointment could  not be said to be invalid. [849\nE-H]\n     Alternatively. even  if  the  assumption  made  in\t Jai\nSinghani's case\t that Rule  4 and the quota referable to the\nexercise of  power conferred by Rule 4 is unquestionable yet\nwhen this  Could held  that the\t quota\tis  related  to\t the\nvacancies, the decision proceeding on an incorrect plea that\nthe information\t about the  number of vacancies in a year is\nnot available,\tis unsustainable for two reasons, namely,(1)\nthat the  files are  now produced;  (2) in  the\t absence  of\ninformation about  the vacancies  available the\t Court could\nnot have  invalidated any appointment on the assumption that\nappointment from  the source  of promotees  was in excess of\nthe quota. [850 A-B]\n820\n     on a  plain levelling of Rules 3,, 4 and 5, it is clear\nthat the,  quota was  related to  vacancies and at one stage\nthat was accepted. On this finding unless the fact situation\nis clearly  established showing\t vacancies year\t to year  it\nwould be  impossible to\t hold that  in any  year  there\t was\nexcess in  either source. Suppose there were 90 vacancies in\na year\tand the\t quota was 66-2\/3 for direct recruits all 33\n1\/3 for\t promotees it  would be\t open to  the Government  to\npromote 30  persons irrespective  of  the  fact\t whether  60\ndirect recruits have become available or not. The assumption\nmade that the recruitment made in a given year from both the\nsources would  furnish information  about the vacancies in a\nyear would  lead to  a rather  unfair conclusion inasmuch as\nthe action  of the  Government in acting in a certain manner\nwithout due  regard to the quota rule would work hardship on\nappointees even though on a correct calculation of vacancies\nthe appointments may be valid and legal. [850 C-E]\n     4 The  Government understood the mandamus issued in Jai\nSinghani's case\t as covering,  the whole period from 1951 to\n1967. When  this was  questioned in  the First\tGupta's case\nthis Court  held that  the quota rule proprio vigme operated\nbetween 1951  to 1956  and if  there were  promotions in any\nyear in\t excess of  the quota.\tthose promotions were merely\ninvalid for that year but they were not invalid for all time\nand they could be regularised by being absorbed in the quota\nfor the\t later years.  So adjusting the quota at any rate np\nto 1956,  the quota  rule on  its  own\tstrength  evaporated\nbecause it was to be in operation for a period of five years\nand no\tfresh quota  rule  was\tissued\tby  the\t Government.\nTherefore, after 1956 Rule 4 remained in force in' all its r\nignore and  was not hedged in by any quota. Rule 4 permitted\nthe  Government\t to  make  recruitment\tfrom  either  source\nwithout fettering  its discretion by any quota rule which it\nwas not\t bound to  prescribe. On January 16, 1959 Government\nhl the\tMinistry of  Finance informed  the  Commissioner  of\nIncome tax that the resident had sanctioned the upgrading to\nClass  I  of  one  hundred  temporary  posts  of  Income-Tax\nofficers Class\tII. On\tDecember 19,  1960 there was further\nupgrading of  114 posts\t from Class  II to  Class I. Between\n1959 and  1962 these  214 posts were filled in by promotees.\nNow in\tthe First  Gupta's case, this Court held even though\nthe quota  expired in  1956  yet  the  Government  of  India\nadopted it  as a  guideline. May  be it\t may be\t so. But, it\ncannot be  said that.  any  appointment\t in  breach  of\t the\nguideline neither statutory nor even having the fragrance of\nany executive  instruction becomes invalid more so, when the\nGovernment had\tpower to make appointment from either source\nuninhibited by\tany quota  rule under  Rule 4. Yet the Court\nfound that between 1956 and 1959 when one hundred posts came\nto be  upgraded there  was a  spill-over of  73 persons\t and\nbecause of  the huge departure from guidelines the weightage\nrule giving  seniority to  the promotees by 2 to 3 years was\ncrushed under its own debris. Again, Rule 4 is overlooked or\nby-passed when\tsaying that.  there was\t a spill-over  of 73\npromotees between  1956 and  1959, nor could it be said that\nthe upgrading  of 214 posts and filling them up by promotees\nwould be in any way even irregular much less invalid because\nRule t\tenables the  Government to  draw from either source.\n[851 A-G]\n     5. In  the Second\tGupta's case in view of the decision\nin the\tFirst Gupta's  case,  a\t fresh\tseniority  rule\t was\nprepared and  it was made retroactive from January 16, 1959.\nlt, inter alia, provides that the relative seniority amongst\nthe promotees  and the direct recruits shall be in the ratio\nof 1: 1 and the same shall be so determined and regulated in\naccordance with a roster main-\n821\ntained for  this purpose  which shall  follow the  following\nsequence, namely, promotee; direct recruit, promotee; direct\nrecruit etc.  This method of roster undoubtedly introduces a\nquota by the back door. Once a roster is introduced promotee\ndirect recruit,\t promotee direct  recruit etc.\teven if some\npromotees have\tcome in\t a bulk\t and if at a later date some\ndirect recruits are appointed in bulk while preparing roster\nan earlier  date-promotee will\thave to yield his place to a\nlater date  direct recruit. Bluntly translated it means that\nthe direct  recruit who\t was never  in service when promotee\nwas promoted  probably he  may be a student, he may not have\neven passed  the competitive  examination, yet\the may\tcome\ninto the  picture challenge one who has already been serving\nin the\tdepartment for\ta number  of years. To illustrate in\nthe new\t seniority list\t prepared by the Government pursuant\nto the\torder made  by this  Court in the First Gupta's case\nand upheld  by this  Court in  the  Second  Gupta's  case  a\npromotee of  1962 will\thave to\t yield his place to a direct\nrecruit of 1966. [851 G-H, 852 A-D] C\n     6. Service\t jurisprudence hardly  permits\ta  situation\nwhere a\t man not  in service  comes and challenges something\nwhich has  been done  much before  he came  into service and\ngets such  an advantage which on the face of it appear to be\nunfair. But apart from this, even in 1959 there was no quota\nrule and assuming that the old service rule giving weightage\nto the\tpromotees crushed  under weight\t of large  number of\npromotees being\t promoted  it  would  not  be  open  to\t the\nGovernment to so prepare a fresh seniority list which cannot\nbe given  effect to  unless a  roster  is  introduced  which\nintroduces quota  by the back door and which is so unfair in\nits operation  that promotees  of 1962\twill have  to  yield\nplace to  direct recruits  of 1966.  Under the old weightage\nrule promotees\twere given  weightage for  service of 2 to 3\nyears over  direct recruits  because  direct  recruits\twere\nunable to  undertake regular assessment work for a period of\n2 to  3 years  when they  were more  or less  under training\nwhile promotees\t have been  doing this\twork for a number of\nyears and  whose experience  is reflected  in the weightage.\nThe whole  thing now  appears to  be in\t the reverse gear in\nthat an\t uninitiated direct recruit takes precedence over an\nexperienced promotee. The unfairness of the new rule is writ\nlarge on the face of the record. [852 E-H]\n     7. The  fresh seniority rule violates another important\nrule well-recognised  principle in the service jurisprudence\nthat in\t the absence  of any valid rule of seniority date of\ncontinuous officiation\tprovides a  valid rule of seniority.\nThis rule  is completely  crucified upon  two  unsustainable\nassumptions that  a quota  rule having guideline sanction is\nmade imperative\t in character  and assumed  to be  in  force\nbetween 1956  and 1959,\t and that  even though Government in\nexercise of  power conferred by Rule 4 for its own necessity\npromoted 214  promotees to  the upgraded post, yet they must\nyield to  some future  direct recruits\twho may\t come to the\ndepartment  at\ta  later  date.\t This  Court  sustained\t the\ndecision holding  that these  were ad  hoc appointments\t and\nthere  are  no\tregular\t posts\tfor  these  promotees.\tThis\napproach wholly\t overlooks the fact and the force of Rule 4.\n[853 A-C]\n     8. Certainty  and continuity  demand  that\t this  Court\nshould\tnot   reopen  settled  decisions  or  reopen  closed\nquestions unless  under compelling necessity. It may he that\nthe  fact   of\tIncome-Tax  officers  promotees\t and  direct\nrecruits may  rest with\t the three  decisions of this Court.\nUnfairness to  some of\tthem H may itself not provide a good\nand compelling\treason for  reopening and  reconsidering the\ndecisions. [853 C-D]\n822\n     Jai Singhani  and the Two Gupta cases are being quoted,\ntimes without  number before  this Court  for the principles\nenunciated therein.  These  decisions,\ttherefore,  affected\nsubsequent decisions  of this  Court as\t well  as  the\tHigh\ncourts\t\t\t\t\t\t\t and\n\t\t\t\t      some of the principles\nenunciated in  these three  cases stand in sharp contrast to\nother decisions\t of this Court and in fact this Court itself\nfelt it\t necessary to  warn that  it may become necessary to\nreconcile these\t conflicting decisions.\t The three decisions\nare incorrect  in the  light of\t the materials\tnow  placed,\nespecially the\tfiles which were withheld from the Court and\nthe  Committee.\t  A  strong  case  has\tbeen  made  out\t for\nreconsideration of these decisions [853 E-F, 854 C-D]\n     N. D.  Chauhan &  Ors. v.\tState of  Rajasthan  &\tOrs.\n[1977] 1 S.C.R. 1037 and 1053 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:  Writ Petition  Nos.  66\/1974  &
\n4146\/1978.\n<\/p>\n
\t\t      (Under Article 32 of the Constitution)
\n     V. M.  Tarkunde, J.  N. Haldar,  Rathin Dass  and A. K.
\nSanghi, for the Petitioners in WP 66\/74.\n<\/p>\n
     Dr. Y.  S. Chitale, Mukul Mudgal and B. R. Aggarwal for
\nthe Petitioners in WP No. 4146\/78.\n<\/p>\n
     S. N. Kackar, Sol. Genl. R. N. Sachthey, E. C. Agarwala
\nand Miss  A. Subhashini for RR 1-3 in WP 66 and RR 1-2 in WP
\n4146.\n<\/p>\n
     Ram Panjwani,  Raj Panjwani,  S. K.  Bagga and  Mrs. 5.
\nBagga for R. 4 in WP 4146 and Intervener (Gujjar Mal.).\n<\/p>\n
     Ram Panjwani,  Bishamber Lal,  Raj Panjwani  and  Vijay
\nPanjwani for the R.6 in WP No. 4146 and R,358 in WP 66.\n<\/p>\n
     Yogeshwar Prasad  and Mrs. Rani Chhabra for the R. 7 in
\nWP 4146.\n<\/p>\n
     A. K  Sanghi for the Interveners (Hari Narain and L. S.
\nChakravarty).\n<\/p>\n
     The  Judgment   of\t Y.  V.\t Chandrachud,  C.J.,  N.  L.
\nUntwalia, P.  S. Kailasam  and E.  S. Venkataramiah, JJ. was
\ndelivered by  Chandrachud, C.J.\t D.  A.\t Desai,\t J.  gave  a
\ndissenting opinion.\n<\/p>\n
     CHANDRACHUD, C.  J.-The disputes  between promotees and
\ndirect recruits\t in various  departments of  the  Government
\nseem to\t have no end. No sooner does one round of litigation
\ncome to\t a decision  than is  another round  started by\t one
\nparty or  the other,  sometimes alleging,  as in these Writ-
\nPetitions, that\t important facts  and circumstances were not
\ntaken into  consideration in  the earlier proceedings either
\nbecause they  were suppressed or because, though cited, they
\nwere overlooked\t or misunderstood.  A virtual review is thus
\nasked for, opening flood
\n823<\/span>
\ngates to  fresh litigation.  There are\tfew other litigative
\nareas than  disputes between  members  of  various  services
\ninter se,  where the  principle that  public policy requires
\nthat all  litigation must have an end can apply with greater
\nforce. Public servants ought not to be driven or required to
\ndissipate their\t time  and  energy  in\tcourt-room  battles.
\nThereby their  attention is  diverted from public to private
\naffairs and  their inter  se disputes  affect their sense of
\noneness\t without   which  no   n  institution  can  function
\neffectively. The  constitution of Service Tribunals by State
\nGovernments with  an apex  Tribunal at the Centre, which, in
\nthe generality\tof cases,  should be  the final\t arbiter  of
\ncontroversies relating\tto conditions  of service, including
\nthe vexed  question of\tseniority, may\tsave the courts from
\nthe avalanche  of writ\tpetitions  and\tappeals\t in  service
\nmatter-. The  proceedings of  such Tribunals  can  have\t the
\nmerit of  informality and  if they  will not be tied down to
\nstrict rules  of evidence,  they might\tbe able\t to  produce
\nsolutions which\t will satisfy many and displease only a few.
\nThere are always a few whom nothing can please.\n<\/p>\n
     The three\tpetitioners in\tWrit Petition No. 66 of 1974
\nare all\t promotees. Petitioner No. 1, Kamal Kanti Dutta, was
\nappointed as an Inspector of Income-tax on December, 7, 1950
\nand  after  passing  the  departmental\texamination  he\t was
\npromoted an  Income-tax officer,  Class II on June 21, 1954.
\nOn January  1, 1966  he was  promoted as Income-tax officer,
\nClass I,  which post  he was  holding on  the  date  of\t the
\npetition, February  8, 1974.  Petitioners 2  and  3,  Bikash
\nMohan Das  Gupta and  Sushil Ranjan  Das, were\tpromoted  as
\nInspectors of  Income-tax in  April, 1955.  The\t former\t was
\npromoted as  I.T.O., Class  II\tin  December,  1957  and  as
\nI.T.o., Class  I, in May, 1971 while the latter was promoted
\nas I.T.o., Class II, in August, 1973.\n<\/p>\n
     Respondents 1  to 5  to the  petition are\tthe Union of
\nIndia, Secretary  to the  Ministry of  Finance, the  Central
\nBoard of  Direct Taxes,\t Secretary to  the Ministry  of Home
\nAffairs\t  and\t the   Union   Public\tService\t  Commission
\nrespectively.  Respondents  6  to  357\twho  were  recruited
\ndirectly as I.T.Os., Class I, were appointed on probation as
\nClass I officers after Petitioner No. 1 was promoted to that
\ncadre on  January, 1,  1966. Respondents  280  to  357\twere
\nappointed on probation as I.T.os., Class I, after Petitioner
\nNo. 2 was promoted to that cadre in May 1971.\n<\/p>\n
     Respondent\t No.   358,  S.\t  G.  Jaisinghani,  who\t was
\nrecruited directly  as I.T.O.,\tClass I, in 1951 was holding
\nthe rank of Assistant Commissioner of Income-tax on the date
\nof the\tpetition. He  was posted at the relevant time as the
\nDeputy Director of Investigation, New Delhi. Respondent 359,
\nMohan Chandra  Joshi, who  was recruited directly as I.T.O.,
\nClass L in 1953 was also holding a similar rank and was
\n824<\/span>
\nworking as Deputy Secretary, Ministry of Defence, Government
\nof India.\n<\/p>\n
     In Writ  Petition No.  4146  of  1978  the\t Petitioner,
\nHundraj Kanyalal  Sajnani, was\tappointed  directly  on\t the
\nrecommendation of  the Union  Public Service  Commission  as
\nI.T.o.,\t Class\t II  (Trainee)\t on  July   1,\t1947.  After
\nsuccessfully completing\t the period  of probation, he passed
\nthe departmental  examination for  I.T.Os. in  July 1950. In
\n1959-60\t he  was  promoted  as\tI.T.O.,\t Class\tI,  and\t was
\nconfirmed in  that cadre  with effect from December 9, 1960.
\nHe was\tpromoted as  an Assistant Commissioner of Income-tax
\nwith effect from December 17, 1969.\n<\/p>\n
     Respondents 1  to 3  to that  petition are the Union of
\nIndia, the Chairman of the Central Board of Direct Taxes and
\nthe   Union    Public\tService\t  Commission   respectively.
\nRespondents 4  to 8  are B. D. Roy, S. G. Jaisinghani, M. C.
\nJoshi, B.  S. Gupta  and M.  Jangamayya respectively.  These
\nofficers have  figured in  certain well-known  decisions  of
\nthis Court,  as a  result of  which their  names have become
\nhouse hold  words in service jurisprudence. In fact, Shri B.
\nS. Gupta  figures in  two cause-titles\tknown as  ‘the first
\nGupta case’  and the  ‘Second Gupta  case’. Respondents 4, 7
\nand  8\tare  Assistant\tCommissioners  of  Income-tax  while
\nrespondents  5\tand  6\tare  workings  Deputy  Directors  of
\nInvestigation.\n<\/p>\n
     It will  be difficult  to appreciate  the nature of the
\nrelief sought  in these\t Writ  Petitions  without  a  proper
\nunderstanding of  the history  of the  litigation leading to
\nthese petitions. That history is quite checkered. one of the
\nprincipal grievances  of the petitioners is that some of the
\nprevious decisions  rendered by this Court are erroneous and
\nthat some  have not been properly understood and interpreted
\nwhile framing rules of seniority. That makes it necessary to
\nrefer to  the previous\tproceedings leading  to the  present
\ncontroversy.\n<\/p>\n
     With a view to improving the income-tax administration,
\nthe Government\tof India,  in consultation  with the Federal
\nPublic\tService\t Commission,  decided  to  reconstitute\t and
\nclassify the  then existing  Income-tax Services,  Classes I
\nand II. The scheme of reorganisation of the Services was set
\nout in\ta letter  dated September 29, 1944 of the Government
\nof India,  Finance Department  (Central Revenues), which was
\nsent to\t all the  Commissioners of  Income-tax. The  Central
\nService, Class\tI was  to consist  of (1)  Commissioners  of
\nIncome-tax, (2)\t Assistant Commissioners  of Income-tax, (3)
\nIncome-tax officers,  Grade I  and (4)\tIncome-tax officers,
\nGrade II. The Central Service, Class II comprised Income-tax
\nofficers, Grade\t III. Thus Income-tax officers, Class I were
\nto be of two grades, Grades I and II, while Income-tax
\n825<\/span>
\nOfficers, Class\t II, were  to consist  of one grade, namely,
\nGrade Ill.  A Clauses  (a) to  (e) of  paragraph  2  of\t the
\naforesaid letter  prescribed modes  of\trecruitment  to\t the
\nvarious posts  in Class\t I and\tClass II.  Clause (d)  which
\nprescribed the mode of recruitment to the post of Income-tax
\nofficer, Class I, Grade II, said:\n<\/p>\n
\t  Recruitment to  Grade-II will\t be made  partly  by
\n     promotion and partly by direct recruitment. 80 per cent
\n     of the  vacancies arising\tin this Grade will be filled
\n     by direct\trecruitment via\t the Indian Audit & Accounts
\n     and Allied\t Service Examination.  The remaining  20 per
\n     cent of  vacancies will  be filled by pro motion on the
\n     basis of  selection from Grade III (Class II Ser vice),
\n     provided that suitable men upto the number required are
\n     available for  appointment. Any surplus vacancies which
\n     cannot be\tfilled by  promotion for  want\tof  suitable
\n     candidates will  be added\tto the quota of vacancies to
\n     be filled\tby direct  recruitment via  the Indian Audit
\n     and Accounts etc. Services examination.<\/p><\/blockquote>\n
     Rules regulating recruitment to the Income-tax officers
\n(Class I, Grade II) Service, “liable to alteration from year
\nto year”,  were published on May 26, 1945 by a resolution of
\nthe Finance  Department (Central  Revenues). Rule 3 provided
\nthat recruitment  to Class I, Grade II Service shall be made\n<\/p>\n
(i) by\tcompetitive examination\t held in India in accordance
\nwith Part II of the Rules and (ii) by promotion on the basis
\nof selection from Grade III (Class II Service) in accordance
\nwith Part III of the Rules. By rule 4, the Government was to
\ndetermine, subject  to the  provisions of rule 3, the method
\nor methods  to be  employed for\t the purpose  of filling any
\nparticular vacancies, or such vacancies as may require to be
\nfilled during  any particular  period,\tand  the  number  of
\ncandidates to  be recruited  by each method. Part III of the
\nRules  called\t‘Recruitment  by   Promotion’  provided\t  by
\nparagraph 21  that recruitment by promotion shall be made by
\nselection from\tamong Grade  I II Income-tax officers (Class
\nII Service)  after  consultation  with\tthe  Federal  Public
\nService Commission  and that no officer shall have any claim
\nto such promotion as of right.\n<\/p>\n
     By a  letter dated\t January 24,  1950 the Government of
\nIndia laid  down certain  rules of  seniority (a) as between
\ndirect recruits,  (b) as  between  promotees  selected\tfrom
\nClass II,  and (c)  as between direct recruits who completed
\ntheir probation\t in a given year and the promotees appointed
\nin the same year to Class I.\n<\/p>\n
     On October\t 18, 1951, the Government of India addressed
\na letter  to all  the Commissioners  of\t Income-tax  on\t the
\nsubject Income-tax officers, 14-463 SCI\/80
\n826<\/span>
\nGrade II  (Class I  Service) quota  of vacancies  filled  by
\npromotion . The letter says:\n<\/p>\n
\t  The\tGovernment   of\t  India\t  have\t had   under
\n     consideration the question of increasing the proportion
\n     of vacancies  reserved  for  promotion  from  Class  II
\n     Income-tax officers  in Class I. It has been decided in
\n     consultation with\tthe Union  Public Service Commission
\n     and in  modification of  para 2(d) of the Finance Dept.
\n     (Central Revenues)\t letter No.  195-Admn. (IT\/39  dated
\n     the 29th  September, 1944\tthat for  a period  of\tfive
\n     years in  the first  instance 66\/2-3 % of the vacancies
\n     in\t Class\tI,  Grade  II,\twill  be  filled  by  direct
\n     recruitment via  combined competitive  examination\t and
\n     the  remaining   33%  by  promotion  on  the  basis  of
\n     selection\tfrom  Grade  III  (Class  II  Service).\t Any
\n     surplus vacancies\twhich cannot  be filled by promotion
\n     for want  of suitable  candidates will  be added to the
\n     quota of vacancies to be tilled by direct recruitment.<\/p><\/blockquote>\n
     By a  letter dated September S, 1952, the Government of
\nIndia  revised\t with  retrospective  effect  the  rules  of
\nseniority which were laid down on January 24, 1950.\n<\/p>\n
     Rule l(f)(iii) as framed on January 24, 1950 read thus:
\n\t  The promotees\t who  have  been  certified  by\t the
\n     Commission in  any calendar year shall be senior to all
\n     direct recruits  who complete  their  probation  during
\n     that year or after and are confirmed with effect from a
\n     date in that year or after.\n<\/p>\n
The rule as revised on September 5, 1952 read thus:\n<\/p>\n
\t  Officers   promoted\tin   accordance\t  with\t the
\n     recommendation of\tthe Departmental Promotion Committee
\n     before the\t next meeting  of the Departmental Promotion
\n     Committee\tshall  be  senior  to  all  direct  recruits
\n     appointed on  the results\tof the\texaminations held by
\n     the Union Public Service Commission during the calendar
\n     year in which the Departmental Promotion. Committee met
\n     and the three previous years.<\/p><\/blockquote>\n
     Rule l(f)(iv)  of the  1952 Rules\tdealt with a special
\nsituation in  which an\tofficer initially appointed to Class
\nII service  is given  seniority in  the\t same  manner  as  a
\ndepartmental promotee,\tif subsequent  to  his\tpassing\t the
\ndepartmental examination  he is\t appointed in Class I on the
\nresults of the competitive examination.\n<\/p>\n
     Rule 4  of Chapter IX of the “Rules of Promotion of the
\nCentral Board  of Revenue  office Procedure  Manual  states,
\nthat the prescribed
\n827<\/span>
\nminimum service\t for an\t officer of  Class I,  Grade II\t for
\npromotion to A Grade I is 5 years gazetted service including
\n1 year\tin Class  l, Grade II. For a promotee from Class II,
\nthe minimum  period of\tservice for  promotion to  Class  I,
\nGrade I, would be actually 4 years service in Class II and 1
\nyear service in Class I, Grade II.\n<\/p>\n
     In 1962,  S. G.  Jaisinghani (who is respondent No. 358
\nin Writ Petition No. 66 of 1974 and respondent No. S in Writ
\nPetition No.  4146 of  1978) filed  Civil Writ\tNo. 189-D of
\n1962 in\t the High  Court of  Punjab under Article 226 of the
\nConstitution, challenging  the\tvalidity  of  the  seniority
\nrules in  regard to Income-tax Service, Class I, Grade II as
\nalso the  actual implementation\t of  the  ‘quota’  rule,  as
\ninfringing  Articles  14  and  16(1)  of  the  Constitution.
\nPromotees who  were likely to be affected by the decision of
\nthe Writ Petition were added as respondents 4 to 126 to that
\nPetition. Jaisinghani  who  was\t recruited  directly  as  an
\nIncome-tax  officer,   Class  I\t  (Grade  II),\traised\tfour
\nprincipal contentions:\n<\/p>\n
     (i)  Rule l(f)(iii) of the seniority rules as framed in
\n\t  1952\t was\tbased\t upon\t an    unjustifiable
\n\t  classification   between   direct   recruits\t and
\n\t  promotees after they had entered Class I, Grade II
\n\t  Service. On  the  basis  of  that  classification,
\n\t  promotees  were   given  seniority   over   direct
\n\t  recruits of  the same\t year and  with weightage of
\n\t  three previous  years. All  officers appointed  to
\n\t  Class I,  Grade II  Service formed  one class\t and
\n\t  after\t being\t recruited   to\t  that\t class,\t  no
\n\t  distinction could  be made between direct recruits
\n\t  and promotees.\n<\/p><\/blockquote>\n
     (ii) Rule 1(f)(iv)\t was discriminatory  because  though
\n\t  the petitioner, Jaisinghani, qualified in the same
\n\t  competitive examination of 1950 for appointment to
\n\t  Class I,  Grade II Service as respondents 4, 5 and
\n\t  6 to that petition, they were treated as senior to
\n\t  him by  the operation\t of the\t artificial rule  by
\n\t  which they  were regarded  as “deemed\t promotees”,
\n\t  since they  were appointed  to Class II, Grade III
\n\t  Service  in  1947.  All  the\tfour  of  them\twere
\n\t  appointed to Class I, Grade II Service in 1951 and
\n\t  therefore  the   period  of\tservice\t put  in  by
\n\t  respondents 4,  5 and\t 6 in  Class II,  Grade\t III
\n\t  Service  cannot   be\tcounted\t  for  fixing  their
\n\t  seniority vis-a-vis the petitioner.\n<\/p><\/blockquote>\n
      (iii) Rule  4 of\tChapter IX  of the ‘Central Board of
\n\t  Revenue  office   Procedure\tManual’\t  leads\t  to
\n\t  discrimination  as  between  direct  recruits\t and
\n\t  promotees; and that
\n828<\/span>\n<\/p><\/blockquote>\n
     (iv) during the years 1951 to 1956, there was excessive
\n\t  recruitment of  71 promotees,\t in violation of the
\n\t  quota rule  of 2:  1 contained  in  Government  of
\n\t  India’s letter  dated October\t 18, 1951. The quota
\n\t  fixed by  that letter\t must be deemed to have been
\n\t  fixed in  exercise of the statutory power given by
\n\t  rule 4  of the Income-tax officers (Class I, Grade
\n\t  II) Service Recruitment Rules published on May 26,
\n\t  1945.<\/p><\/blockquote>\n
     A full  Bench of  the Punjab High Court, Circuit Bench,
\nDelhi,\trejected   the\twrit   petition,  holding  that\t the
\nprinciples for determining seniority between direct recruits
\nand promotees  laid down  in rules 1(f) (iii) and (iv), 1952
\nwere not  discriminatory, that\tthe quota  rule announced by
\nthe Government\tof India  were merely a policy statement and
\nhad no\tstatutory force,  that departure from the quota rule
\ndid not\t give rise  to any  justiciable issue  and that\t the
\npromotion rule\tgoverning promotions  from Class I, Grade II
\nto Class  I, Grade  I was not discriminatory and ultra vires
\nof Articles 14 and 16 of the Constitution.\n<\/p>\n
     In appeal, a Constitution Bench of this Court held that
\nrules l(f)(iii)\t and (iv)  of the  seniority rules framed in
\n1952 did  not violate  Articles 14  and 16  since they\twere
\nbased on  a reasonable\tclassification and  that rule  4  of
\nChapter IX of the ‘Central Board of Revenue office Procedure
\nManual’ cannot\tbe held\t to lead  to any  discrimination  as
\nbetween direct\trecruits and  promotees, since the object of
\nthe rule  was  really  to  carry  out  the  policy  of\trule
\nl(f)(iii) of  the Rules\t of Seniority and not allow it to be
\ndefeated by  the requirement  of five years service in Class
\nI, Grade  II itself, before a person could be considered for
\npromotion to  Class I, Grade I. On the question of excessive
\nrecruitment of\tpromotees from\t1951 to 1956 in violation of
\nquota rule,  the Court\thad directed  the Secretary  of\t the
\nFinance Ministry,  during the  hearing\tof  the\t appeal,  to
\nfurnish information  regarding the number of vacancies which
\nhad arisen  from year  to year from 1945 onwards, the nature
\nof  the\t  vacancies-permanent  or   temporary-the  chain  of
\nvacancies and  such other details which were relevant to the
\nmatters pending\t before the  Court. In\this affidavit  dated
\nJanuary 31,  1967 Shri\tR. C.  Dutt, Finance Secretary, said
\nthat he\t was not  able to  work out,  in spite\tof his\tbest
\nendeavours, the\t number of vacancies arising in a particular
\nyear. However,\ta statement,  Ex. E.  was furnished  to\t the
\nCourt showing  the number  of officers\trecruited by the two
\nmethods\t of  recruitment  to  Class  I\tService\t during\t the
\nrelevant years.\t The Court  found that it was not clear from
\nShri Dutt’s  affidavit whether\tthe quota  rule was followed
\nstrictly for  the years\t in question  and noted\t that in the
\nabsence of  figures of permanent vacancies in Class 1, Grade
\nII, for the relevant years, the Solicitor General was unable
\nto say to what extent
\n829<\/span>
\nthere had  been deviation  from\t that  rule.  Rejecting\t the
\nsubmission of  the Solicitor General that the quota rule was
\nmerely an administrative direction, the Court held that rule
\n4 of  the Income-tax  officers Class  I, Grade\tII)  Service
\nRecruitment  Rules  was\t a  statutory  rule  under  which  a
\nstatutory duty\twas cast  on the Government to determine the
\nmethod or  methods to be employed for the purpose of filling
\nthe vacancies  and the\tnumber of candidates to be recruited
\nby each\t method; and  that, though  in\tthe  letter  of\t the
\nGovernment of  India dated  October 18,\t 1951 there  was  no
\nspecific reference to rule 4, the quota fixed by that letter
\nmust be\t deemed to  have  been\tfixed  in  exercise  of\t the
\nstatutory power\t given by  rule 4.  There was  therefore  no
\ndiscretion left\t with the  Government of India to alter that
\nquota according\t to the\t exigencies of\tthe situation  or to
\ndeviate from  the quota,  in any particular year, at its own
\nwill and  pleasure. The\t quota rule, according to the Court,
\nwas linked  up with  the seniority  rules and  unless it was
\nstrictly observed  in practice it would be difficult to hold
\nthat the  seniority rule contained in rule l(f)(iii) was not
\nunreasonable  and   did\t not   offend  Article\t 16  of\t the
\nConstitution. The Court expressed its conclusion thus: D
\n\t  We are  accordingly of  the opinion that promotees
\n     from Class\t II, Grade  III to Class I, Grade II Service
\n     in excess\tof the\tprescribed quotas  for each  of\t the
\n     years 1951\t to 1956  and onwards  have  been  illegally
\n     promoted and the appellant is entitled to a writ in the
\n     nature of\tmandamus commanding  respondents ‘ I to 3 to
\n     adjust  the   seniority  of  the  appellant  and  other
\n     officers similarly\t placed like  him and  to prepare  a
\n     fresh seniority  list  in\taccordance  with  law  after
\n     adjusting the  recruitment for  the period 1951 to 1956
\n     and  onwards   in\taccordance   with  the\t quota\trule
\n     prescribed in the letter of the Government of India No.
\n     F. 24(2)-Admn.  I.T.\/51 dated  October  18,  1951.\t We,
\n     however, wish to make it clear that this order will not
\n     affect such  Class II  officers who have been appointed
\n     permanently as  Assistant Commissioners  of Income Tax.
\n     (emphasis supplied).\n<\/p>\n
The Court  suggested that for future years the roster system
\nshould be adopted by framing an appropriate rule for working
\nout the\t quota between the direct recruits and the promotees
\nand that  a roster should be maintained indicating the order
\nin which  appointments are made by direct recruitment and by
\npromotion in accordance with the percentages fixed under the
\nstatutory rule for each method of recruitment.\n<\/p>\n
     In Writ  Petition No.  S of 1966 filed by Mohan Chandra
\nJoshi under  Article  32  of  the  Constitution,  a  similar
\nmandamus was  issued by the Court. Mohan Chandra Joshi, like
\nJaisinghani, was recruited directly
\n830<\/span>
\nas Income-tax  officer, Class  I, Grade\t II, with  the\tonly
\ndifference that\t he was\t appointed in 1953 while Jaisinghani
\nwas appointed in 1951.\n<\/p>\n
     Thus the  direct recruits\tsucceeded  substantially  in
\ntheir contentions.  the quota rule acquired statutory force,
\nappointments of\t promotees in excess of the quota became bad
\nand it\tbecame obligatory  for the  Government to  prepare a
\nfresh seniority list. Promotees found to have been appointed
\nin excess of the quota admissible to promotees had naturally
\nto go down lin the final gradation of seniority.\n<\/p>\n
     The aforesaid  decision was  given\t by  this  Court  on
\nFebruary 2,  1967. But,\t in spite  of the mandamus issued by
\nit, Government\tdid not\t prepare a  fresh seniority list for
\nover a\tyear, which led to the filing of a contempt petition
\nby Jaisinghani\tand Joshi.  Those proceedings were dismissed
\nby this\t Court on November 6, 1968. In the meanwhile on July
\n15, 1968, the Government prepared a fresh seniority list and
\nfiled  it  in  this  Court.  That  list\t failed\t to  satisfy
\npromotees as well as direct recruits.\n<\/p>\n
     Two writ  petitions were  filed in the Delhi High Court
\nto challenge the fresh seniority list: one by B. S. Gupta, a
\npromotee of  1962 and  the other  by M.\t C. Joshi,  a direct
\nrecruit who had succeeded in the earlier round of litigation
\nin this\t Court. These  writ  petitions\twere  heard  by\t two
\nseparate Benches  of the Delhi High Court. Writ Petition No.
\n196 of\t1970 filed by B. S. Gupta was dismissed whereas Writ
\nPetition  No.\t550  of\t 1970  filed  by  M.  C.  Joshi\t was
\nsubstantially allowed. Setting aside the seniority list, the
\nHigh Court  gave a  direction that another seniority list be
\nprepared in the light of its judgment.\n<\/p>\n
     The decision  of the  Delhi High Court in the aforesaid
\ntwo writ  petitions was\t challenged in\tthis Court  in\tfour
\nappeals: one  by B.  S. Gupta  against the  dismissal of his
\nwrit petition  and the\tother three  by (i)  the Government,\n<\/p>\n
(ii) M.\t C. Joshi  and\t(iii)  S  promotees.  In  all  these
\nappeals, the  only question or consideration was whether the
\nseniority list\tprepared on July 15, 1968 was correct and in
\naccordance  with  the  mandamus\t issued\t by  this  Court  in
\nJaisinghani v.\tUnion of  India and  Ors.(1). These  appeals
\nwere heard together and were disposed of by a judgment dated
\nAugust 16,  1972 which\tis reported in Bishan Sarup Gupta v.
\nUnion of India and Ors.(2).\n<\/p>\n
     While  preparing  the  seniority  list  the  Government
\nunderstood the mandamus issued in Jaisinghani(l) as covering
\nthe entire period from 1951 to 1967. For doing that it could
\nnot be\tblamed, since  the mandamus issued in Jaisinghani(1)
\ndirected the Government to adjust the
\n831<\/span>
\nseniority of  various officers\tfor the\t period 1951 to 1956
\n“and onwards”,\tA though  the argument\tregarding  excessive
\nrecruitment of\tthe promotees was confined to the years 1951
\nto 1956.  Palekar, J. speaking for the Court in Bishan Sarup
\nGupta (Supra) observed in the first instance that this Court
\ncould not  possibly have in mind a seniority list which took
\nin  promotees  after  1956  and\t that  therefore  under\t the
\nmandamus issued\t by this Court, appointments of promotees in
\nexcess of  the quota  could only be taken into consideration
\nin relation  to the  period 1951 to 1956. The reason for the
\nuse of\tthe words  “and onwards”  was explained\t to be\tthat
\nGovernment should  be able to push down excess promotions to
\nlater years  in order that such promotions could be absorbed
\nin the lawful quota available for later years. C
\n     In Bishan\tSarup Gupta-the\t Court was  called  upon  to
\nexamine the  correctness of  seven principles  enumerated in
\nthe  Government\t  letter  dated\t  July\t15,  1968  governing
\nseniority. The\tfirst principle\t was accepted  as good.\t The
\nsecond and  the third  principles were\theld to be partially
\nincorrect in  so far  as they  excluded reference to all the
\npromotees of 1952. The Court held that the promotees of 1952
\nshould be referred to in the seniority list whether they are
\naffected or  not, the  object  being  the  ascertainment  of
\nexcess promotions.\n<\/p>\n
     The fourth\t principle set out in the letter of July 15,
\n1968 which is important for our purpose reads thus: E
\n\t  In view  of the  difficulty  in  working  out\t the
\n     vacancies arising\tin each\t year the  total  number  of
\n     direct recruits  and promotees  in each  year have been
\n     taken into\t account for the purpose of implementing the
\n     quota rule.\n<\/p>\n
This Court held that the rule dated October 18, 1951 was not
\nconcerned with\tthe  constitution  of  the  cadre  but\t“was
\nconcerned with\thow permanent  vacancies were  to be filled”
\nand therefore  the promotees would be entitled to 1\/3 of the
\nvacancies in  any particular  year whether  or not there was
\ndirect recruitment  by competitive examination in that year.
\nThis ratio  of 2:  1 between  the direct  recruits  and\t the
\npromotees could\t not be made to depend on whether any direct
\nrecruits were appointed in any particular year. It therefore
\nbecame essential  to determine\tthe actual  vacancies in the
\ncadre but even in B. S. Gupta the Government put forward the
\nplea that  it was  impossible for  them to  give  the  exact
\nfigure of  vacancies in\t any particular year. Counsel 11 who
\nappeared for the promotees in that case filed a chart marked
\nAnnexure 1  which, according  to  him,\tshowed\tthe  correct
\nnumber of
\n832<\/span>
\nvacancies in the particular years. The Court, however, found
\nit impossible to determine the actual vacancies on the basis
\nof the\tfigures given  in that\tchart. In the circumstances,
\nthe Court  considered it  reasonable to accept the number of
\nappointments made  in the  particular years as substantially
\nrepresenting the actual vacancies available for being filled
\nup. One\t of the\t reasons which\tthe Court gave in support of
\nthis conclusion\t was that  when the  quota rule\t referred to
\nvacancies, it  was implicit  that the  vacancies  are  those
\nwhich the  Government wanted to fill up, whatever may be the
\nactual number  of vacancies  available for  being filled up.
\nThus, if  in the  year 1953,  53 posts were filled by direct
\nrecruits and  38 by promotees, the total number of vacancies
\nwhich were  intended by the Government to be filled in would
\nbe 91.\tPromotees would\t be entitled  to hold  1\/3 of  these
\nnamely, 30. 8 promotees therefore could be said to have been
\nappointed in  excess of\t the quota  available for promotees.
\nThis  was  in  fact  what  the\tGovernment  had\t done  while
\npreparing the  fresh seniority\tlist, though  it had wrongly
\ncalculated the\tvacancies with\teffect from  the  year\t1953
\ninstead of  doing so  w.e.f. the beginning of the year 1952.
\nThere were no promotions in 1951 and therefore, the question
\nof appointment of promotees in excess of their quota did not
\narise for that year.\n<\/p>\n
     The argument  advanced on behalf of the direct recruits
\nthat the  quota rule  should be\t co-related to\tvacancies in
\npermanent posts only and not to those in temporary posts was
\nrejected by the Court.\n<\/p>\n
     The Court upheld the 5th principle under which Class II
\nofficers  promoted  to\tClass  I,  Grade  II,  were  allowed
\nweightage under rule 1(f)(iii).\n<\/p>\n
     The Court\tthen considered\t the  question\twhether\t the
\nquota rule  could be  applied after  the year  1956. It held
\nthat even  after 1956, the Government was entitled by reason
\nof rule\t 4 of  the Recruitment\tRules of  1945 to follow the
\nquota rule  of 1951  as a rough guideline, “without going to
\nthe trouble of putting the same on record in so many words”.
\nThe Court  observed that  if  the  rule\t is  followed  as  a
\nguideline, a  slight  deviation\t from  the  quota  would  be
\npermissible but\t if there was an “enormous deviation”, other
\nconsiderations may  arise.  Taking  into  consideration\t the
\nrelevant circumstances,\t the Court  came to  the  conclusion
\nthat in\t the normal  course the\t Government was\t entitled to
\nprepare\t the   seniority  list\ttill  the  end\tof  1958  in
\naccordance with the quota rule of 1951.\n<\/p>\n
     In regard\tto the\tposition after\tthe year  1958,\t the
\nCourt came  to the  conclusion that the quota rule ceased to
\napply and  came to  an end  on January\t16,  1959  when\t the
\nsanction to upgrade 100 temporary posts in
\n833<\/span>
\nclass II,  grade III  to class\tI, grade II was given by the
\nPresident. The seniority rule then fell with the quota rule.
\nOn these  considerations it was held that the seniority list
\nwas valid in regard to promotions made upto January 15, 1959
\nto the extent that it was prepared on the basis of the quota
\nrule dated  October 18,\t 1951 read  with the  seniority rule
\n1(f) (iii).\n<\/p>\n
     This position  made  it  necessary\t for  the  Court  to
\nconsider as  to how  the inter\tseniority between the direct
\nrecruits and  the promotes was to be fixed after January 16,
\n1959, if the seniority rule l(f)(iii) ceased to be operative
\nfrom that  date. Several  suggestions were made to the Court
\nwith a\tview to evolving a fair and just seniority rule. The
\nCourt declined\tto be  drawn  into  any\t such  exercise\t and
\npreferred to leave it to the Government to devise a fair and
\njust seniority\trule, if necessary, in consultation with the
\nU.P.S.C. As  a corollary,  the Court set aside the seniority
\nlist of July 15, 1968 and directed the Government to prepare
\na fresh\t seniority list.  The list  for the  years  1955  to
\nJanuary 15,  1959 was  directed to be prepared in accordance
\nwith the  quota\t rule  of  1951\t read  with  seniority\trule
\nl(f)(iii). The\tlist to\t be effective  from January 16. 1959
\nwas directed  to be  prepared in accordance with rules to be
\nmade afresh by the Government.\n<\/p>\n
     Principles\t (6)   and   (7)   did\t not   survive\t for
\nconsideration separately  in view  of the position mentioned
\nabove. E
\n     The Court\tkept the  proceedings pending on its file to
\nenable the  Government to  prepare a fresh seniority list in
\nthe light  of the  directions given  by it within six months
\nfrom the date of the order. Liberty was given to the parties
\nto apply to the Court after the list was filed.\n<\/p>\n
     The judgment  in B.S. Gupta (supra) was given on August
\n16, 1972.  On February\t9, 1973,  the President\t made  rules
\ncalled the  Income-tax\t(Class\t1)  Service  (Regulation  of
\nSeniority) Rules,  1973. These Rules were made under Article
\n309 of\tthe Constitution and were given retrospective effect
\nfrom January  16, 1959. In pursuance of the liberty reserved
\nto the\tparties\t under\tthe  judgment  in  B.S.\t Gupta,\t the
\nvalidity of  the new  Seniority Rules  was challenged by the
\npromotes. That challenge was considered and repelled by this
\nCourt in  Bishan Sarup\tGupta etc.  v. Union of India & ors.
\netc. etc.,(l) the 2nd Gupta case.\n<\/p>\n
     Rule 3 of the new Seniority Rules of 1973 reads thus:
\n     “3. Seniority of officers- The seniority of the Income-
\n     tax officers  in the Class I service shall be regulated
\n     as from the
\n834<\/span>
\n     date of  commencement of these rules in accordance with
\n     the provisions hereinafter contained namely:-\n<\/p>\n
     (i)  the seniority among the promotes inter se shall be
\n\t  deter mined  in the  order of\t selection for\tsuch
\n\t  promotion and the officers promoted as a result of
\n\t  any earlier  selection shall\trank senior to those
\n\t  selected as a result of any subsequent selection;\n<\/p>\n
     (ii) the  seniority among\tthe direct recruits inter se
\n\t  shall be  deter- mined  by the  order of  merit in
\n\t  which they  are selected  for such  appointment by
\n\t  the Union Public Service Commission and any person
\n\t  appointed as\ta result  of an\t earlier select\t ion
\n\t  shall rank  senior to\t all other persons appointed
\n\t  as a result of any subsequent selection; and\n<\/p>\n
     (iii) the relative seniority among the promotes and the
\n\t  direct recruits  shall be in the ratio of 1: 1 and
\n\t  the same  shall be  so determined and regulated in
\n\t  accordance  with   a\troster\tmaintained  for\t the
\n\t  purpose,  which   shall   follow   the   following
\n\t  sequence, namely:-\n<\/p>\n
\t  (a) promote;\n<\/p>\n
\t  (b) direct recruit;\n<\/p>\n
\t  (c) promote;\n<\/p>\n
\t  (d) direct recruit; and so on
\nWhen  the   new\t list  of  seniority  was  prepared  by\t the
\nGovernment in  accordance with\tthese rules,  the Government
\nhad on\tits hands  73 promotes who, though appointed earlier
\nbetween\t 1956  and  1958,  had\tno  quota  posts  for  their
\nabsorption. The\t 73 promotes,  described as  “spillovers  on
\nJanuary\t 16,   1959”  as   also\t those\t who  were  promoted
\nsubsequently had  to be absorbed in the Service, which could
\nonly be done by a special rule framed in that behalf.\n<\/p>\n
     The method adopted in the preparation of this list was,
\naccording  to\tPalekar,  J.,\twho  spoke   again  for\t the
\nConstitution Bench  in the  2nd Gupta case, “simple enough”,
\nthough the  wording of\tthe rule  “19 not happy”. The simple
\nmethod\tadopted\t  by  the  Government  was  like  this:\t The
\nseniority list\tfrom serial No. 1 to serial No. 485 relating
\nto the\tperiod from 1951 to January 16, 1959 was prepared in
\naccordance with\t the quota rule read with the seniority rule
\nwhich prevailed\t until January\t16, 1959.  At serial numbers
\n486 to\t1717 are  officers who\thad to\tbe accommodated from
\nJanuary 16, 1959 in accordance with the new seniority rules.
\nSince under  rule 3  (iii), the first post in the roster has
\nto go to a promote and the next to a direct recruit
\n835<\/span>
\nserial No. 486 goes to a promote, serial No. 487 to a direct
\nrecruit A. and so on. Promotes whose ranking is below serial
\nNo. 485\t are either  out of  the 73 spillovers as on January
\n1959, or  are those  who were appointed later. Thus, the new
\nseniority rule\tcontains a formula for the absorption of all
\nPromotes  with\t effect\t from  January\t16,  1959  in  posts
\nallocated to  them, it\tdetermines their  seniority inter se
\nand last  but not  the least,  it determines their seniority
\nqua the direct recruits appointed from 1959.\n<\/p>\n
     The Court\tover-ruled the objection of the 73 spillover
\nPromotes that  since, in  the Ist  Gupta case, the Court had
\ndirected that they should be absorbed on a “priority basis”,
\nall of\tthem should have been shown in the seniority list as
\nhaving been  appointed on  January 16,\t1959 embolic and the
\ndirect\trecruits  for  that  year  should  have\t been  shown
\nthereafter.  It\t was  explained\t that  by  the\tuse  of\t the
\nexpression “priority basis”, what was meant by the Court was
\nthat the  position of  the  spillover  promotes\t as  seniors
\nshould not be prejudiced by claims made by later promotes on
\nthe ground  that since the spillover promotes were recruited
\nin excess  of the  quota, the later promotes whose promotion
\ndid not\t violate the quota rule had higher rights than those\n<\/p>\n
73.
\n     The principal contention of the promotes in the 2nd GPA
\ncase was  this: As  the quota  rule collapsed on January 16,
\n1959 the  spillover promotes as also those who were promoted
\nthereafter must\t be deemed to have been validly appointed in
\naccordance with\t rule 4\t of the\t Recruitment Rules  of 1945.
\nSince there  was no seniority or quota rule in existence for
\ndetermining  the   seniority  of  promotes  Que\t the  direct
\nrecruits, the natural seniority linked with the earlier date
\nof appointment must be respected. lt could not be altered to
\nthe detriment  of the  promotes since to do so would violate
\nArticle 16 of the Constitution. This contention was rejected
\nby the\tCourt on  the ground  That  when  the  73  spillover
\nappointments were made, there were no allocated or earmarked
\nposts to  which\t those\tpromotes  could\t have  been  validly
\nappointed, the ordinary consequence of which would have been
\ntheir reversion\t to Class  II posts  which  they  originally
\nheld.  So   long  as   the  quota  rule\t was  in  existence,
\nappointments in\t excess of  the quota,\tthough invalid\twhen
\nmade, were  at least  liable to be regularized in subsequent
\nyears when  vacancies were  available to  the promotes\tas a
\nconsequence of\tthe quota  rule. But  once  the\t quota\trule
\nceased to  exist on January 16, 1959, any possibility of the
\nexcess\tappointments   of  the\tpromotes  being\t regularized
\nvanished. It  was in order to overcome this injustice to the
\npromotes, that\tthe new\t rule was  framed by the Government.
\nThe new\t rule was  thus not  only the  direct outcome of the
\njudgment of the Court in the 1st Gupta case,
\n836<\/span>
\nbut it\twas founded  on the  very principles  on  which\t the
\nIncome tax  Service had\t been constituted. The Court finally
\nsaid that  it  had  also  to  be  remembered  that  promotes
\nappointed from January 16, 1959 onwards were appointed on an
\nofficiating or ad-hoc basis with notice that the question of
\ntheir seniority\t was  still  undecided.\t This  circumstance,
\ncoupled with the absence of clear allocations of posts, made
\nit impossible for the promotes to lay claim to seniority and
\ncontend that  they were\t deprived of their natural seniority
\nin violation of Article 16.\n<\/p>\n
     Shri  V.M.\t Tarkunde  who\tappears\t on  behalf  of\t the
\npetitioners in Writ Petition No. 66 of 1974 has made a fresh
\nchallenge to the new seniority list prepared in pursuance of
\nthe rules  dated February  9, 1973 the validity of which was
\nupheld\tby  this  Court\t in  the  2nd  Gupta  case  (Supra).
\nAccording  to\tthe  learned   counsel,\t the   decision\t  in
\nJaisinghani.  (Supra)\tsuffers\t from  the  following  three
\ninfirmities:\n<\/p>\n
     (i)   It was assumed in that case that the appointments
\n\t  of promotes  were in excess of the quota available
\n\t  to them  because the\trelevant files were not made
\n\t  available  to\t  the  Court,  nor  indeed  was\t the
\n\t  necessary  data  placed  before  the\tCourt,\teven
\n\t  though during\t the hearing of the appeal the Court
\n\t  had asked the Secretary of the Finance Ministry to
\n\t  furnish information in that behalf. In the absence
\n\t  of such  information, the Court made an assumption
\n\t  which was  unjustified, that\tthe total  number of
\n\t  vacancies available  for promotes was equal to the
\n\t  total number\tof appointments\t actually made.\t If,
\n\t  for example,\t10 direct  recruits and\t 20 promotes
\n\t  are appointed\t in a  particular year\tit cannot be
\n\t  assumed  either   that  only\t 30  vacancies\t are
\n\t  available for being filled up in that year or that
\n\t  only 30  appointments are  intended to  be made by
\n\t  the  Government   during  that  year.\t The  proper
\n\t  inference for the Court to draw, in the absence of
\n\t  material which  ought to have been produced by the
\n\t  Government, was  that if  appointments were  to be
\n\t  made\tof  direct  recruits  and  promotes  in\t the
\n\t  proportion of\t 2: 1,\tand if\t20 promotes  were in
\n\t  fact appointed,  the Government desired to appoint
\n\t  40 direct  recruits but  could  only\tappoint\t 10,
\n\t  probably  because  of\t the  non-  availability  of
\n\t  suitable candidates for direct recruitment.\n<\/p><\/blockquote>\n
     (ii) It was  wrongly assumed or held that rule 4 of the
\n\t  Income tax  officers (Class  I. Grade\t ll) Service
\n\t  Recruitment Rules was a statutory rule.\n<\/p><\/blockquote>\n
837<\/span><\/p>\n
      (iii) lt\twas wrongly  assumed that 100 posts in Class
\n\t  11, Grade  III, and  114 posts  in the  same cadre
\n\t  which were  upgraded as Class I, Grade II posts on
\n\t  January 16, 1959 and December 9, 1960 respectively
\n\t  were exclusively  allotted to promotes and were in
\n\t  fact filled in by the appointment of promotes.<\/p><\/blockquote>\n
     In regard to the decision in the 2nd Gupta case (Supra)
\nit is contended that the decision suffers from the following
\ninfirmities:\n<\/p>\n
     (i)   It was wrongly held therein that the 73 spillover
\n\t  promotes as on January 16, 1959 could not be given
\n\t  priority en  bloc, even  though it was directed in
\n\t  the judgment\tin the\t1st Gupta  Case (supra) that
\n\t  they should be dealt with on a “priority basis”.\n<\/p><\/blockquote>\n
     (ii)  It  was  wrongly  held  that\t 214  promotes\twere
\n\t  appointed in\texcess of the quota available to the
\n\t  promotes.\n<\/p><\/blockquote>\n
      (iii) The\t conclusion that  no distinction can be made
\n\t  between promotes  and direct\trecruits  once\tthey
\n\t  belong to  a com-  mon cadre\twas erroneous,\tas a
\n\t  result  of   which  the   promotes  were  unjustly
\n\t  deprived of their right to weightage.\n<\/p><\/blockquote>\n
     (iv) The  provision in rule 3 (iii) of the new Rules of
\n\t  seniority  of\t  1973\tthat   direct  recruits\t and
\n\t  promotes will\t be appointed in the ratio of SO: SO
\n\t  cannot work  to  the\tadvantage  of  the  promotes
\n\t  because the  measure of SO percent is fixed by the
\n\t  new rules  in relation  to the actual appointments
\n\t  made, whereas\t the old  proportion of\t 2: 1 was in
\n\t  relation  to\t the  actual   number  of  vacancies
\n\t  available for being filled in.<\/p><\/blockquote>\n
     Learned counsel  has demonstrated with the help of some
\nof the\tinstances in  the new  seniority  list,\t as  to\t how
\npromotes  have\t been  treated\t unfairly  and\tunjustly  in
\ncomparison with direct recruits. One such instance is that a
\ndirect recruit, Hrushikesh Mishra, who was appointed on July
\n3, 1966\t is placed  at serial  No. 1001\t while\tone  of\t the
\npetitioners, Kamal Kanti Dutta, who was appointed six months
\nearlier on  January 1,\t1966 is\t placed at  serial No. 1318.
\nAnother instance cited is that of a promote, V. R. Hiremath,
\nwho was\t appointed on  March 1, 1956 but is placed at serial
\nNo. 486, the first 485 officers having been ranked according
\nto the\tquota  rule  read  with\t the  seniority\t rule  which
\nprevailed till\tJanuary 16, 1959. Hiremath, it is contended,
\nnot having been appointed in excess of the quota should have
\nbeen given  his seniority,  on account\tof the\tthree years’
\nweightage, with\t effect from  March 1, 1953. In the process,
\nhe has lost a benefit spread
\n838<\/span>
\nOver not  only three  but six years, because his ranking has
\nbeen made  according to the new rule in relation to the date
\nJanuary 16, 1959.\n<\/p>\n
     These contentions\twere adopted by Dr. Y.S. Chitale who
\nappears on  behalf of  the petitioner  H.K. Sajnani  in Writ
\nPetition No.  4146 of 1978. It may be mentioned that in Writ
\nPetition No.  66 of  1974 of K.K. Dutta and others which was
\nfiled on  February 8, 1974 no demand was made for the review
\nof the\tdecisions earlier  given by this Court on the points
\nunder  consideration.\tThe  request  for  review  of  those
\ndecisions was  made for the first time by the petitioners by
\nparagraph 3  of their  supplementary affidavit\tin rejoinder
\nwhich was filed in this Court in April 1978. By paragraph 45
\nof his\tWrit Petition,\twhich was  filed on  June  27,\t1978
\nSajnani did contend that the aforesaid judgments be reviewed
\nsince they  were wrongly decided. Sajnani asked by paragraph
\nSl of  his petition,  and so  did the  petitioners  in,\t the
\ncompanion petitions asked by, their supplementary rejoinder,
\nthat the  decision of  this Court  in Union  of India  v. M.
\nJangamayya<\/a>(1) should also be reviewed.\n<\/p>\n
     In\t his   writ  petition,\tSajnani\t has  cited  several
\nspecific instances  in support\tof his contention that under
\nthe new seniority rules, the promotes have been treated with
\nan evil eye and an uneven hand. His complaint is that direct
\nrecruits who are “15 years junior in age and 15 years junior
\nin experience\thad  been placed  above him”;  and that\t the
\nseniority  list\t  dated\t April\t 15,   1978   of   Assistant
\nCommissioners of  Income- tax, which is the basis of further
\npromotion to  the post\tof Commissioner of Income- tax, does
\nnot include  his name  at all, though he has been working as
\nan Assistant  Commissioner  ever  since\t 1969  when  he\t was
\nselected by  the competent authority with the concurrence of
\nthe U.P.S.C.,  after putting  in 22  years of  service as an
\nI.T.O., out of which 10 years’ service was rendered in Class
\nI itself.  Sajnani also\t prays that the seniority list dated
\nApril 15,  1978 for  the cadre of Assistant Commissioners be
\nset  aside  as\tviolating  Articles  14\t and  16(1)  of\t the
\nConstitution.\n<\/p>\n
     In addition  to these grounds which are pressed upon us
\nfor reviewing  our decisions in Jaisinghani, Ist Gupta case,
\n2nd Gupta  case and Jangamayya, (supra) the petitioners have
\nplaced strong reliance on the findings of the 49th Report of
\nthe Committee  on Petitions  of the  Rajya Sabha,  which was
\npresented on  January 9, 1976. A full text of that Report is
\nextracted at  pages 242\t to 363\t of the compilation filed by
\nthe writ petitioners in this Court.\n<\/p>\n
     It appears\t from that report that at the sitting of the
\nRajya Sabha  held  on  the  23rd  August,  1974,  Shri\tKali
\nMukherjee, M.P., presented
\n839<\/span>
\na petition  signed by  Shri R.C.  Pandey, General Secretary,
\nAll India  A  Federation  of  Income-tax  Gazetted  Services
\nAssociations, New  Delhi, praying  for\tthe  repeal  of\t the
\nIncome-tax  officers  (Class  I\t Service)  4  Regulation  of
\nSeniority  Rules,   1973)  and\tfor  the  framing  of  fresh
\nseniority rules\t in lieu  thereof. The\tCommittee heard\t the
\nrepresentatives of (i) promotes on whose behalf the petition
\nwas presented  to The  Rajya Sabha;  (ii)  the\tMinistry  of
\nFinance and  (iii) the\tdirect recruits who were represented
\nby the\tIndian\tRevenue\t Service  Association.\tAfter  going
\nthrough the  evidence, the memoranda and the files- supplied
\nby the Ministry of Finance the Committee observed:\n<\/p>\n
     “…. the\tDepartment from\t 1944 till  today  has\tbeen
\n     working in a very haphazard, irregular and unscientific
\n     way. They\tmade policies,\trules, etc. and then went on
\n     deviating from them to suit certain exigencies. Instead
\n     of meeting\t the new  situation or\tthe demands  of\t the
\n     Department in  a scientific  or rational way, ad-hocism
\n     prevailed.\t This  led  to\tlitigation  for\t nearly\t two
\n     decades. Since  the year  1944, the Department has made
\n     so many  commissions and omissions in its long working.
\n     thereby it\t has provided  arguments to  both the direct
\n     recruits and promotes which have been advocated by them
\n     force fully. ‘This has created bitterness and a picture
\n     of civil war in the Department. It would facilitate our
\n     understanding if  we look\tat the\tvarious points, like
\n     vacancies, quota,\tseniority, weightage, confirmations,
\n     recruitments or  promotions to  temporary and permanent
\n     vacancies, etc. in a proper perspective.”\n<\/p><\/blockquote>\n
The Committee  examined the  files produced before it by the
\nMinistry, expressed  its sense of “shock” at the plea of the
\nMinistry that  files of vital matters were not traceable and
\nconcluded that\tthe new\t seniority rules  of 1973  should be
\nscrapped. The Committee recommended, inter alia,:\n<\/p>\n
     “The entire  concept of  a common seniority list should
\n     be given up. The existing common seniority list of 1973
\n     be replaced  by two  sets of seniority lists consisting
\n     of direct\trecruits and  promotes respectively,  on the
\n     basis  of\t the  dates   of  their\t  appointment.\t The
\n     integration of  the two  channels which  may be  turned
\n     into two  cadres should  not be  done at  the level  of
\n     I.T.Os.   but    after   the    level   of\t   Assistant
\n     Commissioners.”\n<\/p><\/blockquote>\n
The Committee  hoped that  with the  separation of  the\t two
\nseniority lists, the controversy of inter se, seniority will
\nbe resolved  and the  hardship caused  to the  434  officers
\npromoted  between   1956  to  1966  will  be  relieved.\t The
\nCommittee made\tcertain calculations according to which, the
\ncorrect number of spill-over promotes as on Jan-\n<\/p>\n
840<\/span><\/p>\n
uary 16, 1959 was 15 and not 73. Observing in paragraph 7(i)
\nthat the  Parliament owes  responsibility in service matters
\ntoo and\t that the  executive is answerable to the Parliament
\nfor its actions, the Committee concluded its Report with the
\nobservation:\n<\/p>\n
     “…. if  necessary, a special law could be enacted and
\n     in corporated in the Ninth Schedule of the Constitution
\n     so that  no further  scope is  left  for  disputes\t and
\n     litigation and  the Department  would start functioning
\n     as an  efficient and  well- knit  unit and\t fulfil\t its
\n     intended role in combating the evils of black money and
\n     tax evasion  and ensuring the stability and progress of
\n     our country.”\n<\/p><\/blockquote>\n
It is  not necessary to go into complications arising out of
\nthe random placement of statutes, rules and notifications in
\nthe 9th\t Schedule, but\twe  do\thope  that,  some  day,\t the
\npromised millennium will come.\n<\/p>\n
     The Solicitor General and the other learned counsel who
\nappear for the respondents resisted with great stoutness the
\nattempt of  the petitioners  to reopen decisions rendered by
\nthis Court  in disputes between promotes and direct recruits
\nof the\tIncome-tax Service.  The  respondents  contend\tthat
\neveryone of  the arguments  now presented before us has been
\nalready considered  carefully in  the earlier  decisions and
\nthe petitioners’  demand for  review  is  only\tyet  another
\nattempt to  retrieve a\tlost cause.  The  learned  Solicitor
\nGeneral also  pressed upon  us the  need  for  treating\t the
\nmatter as  closed.  Reviews,  he  contends,  should  not  be
\ngranted save  in exceptional  circumstances and at any rate,
\nhe says,  no solution  in service  matters can\tever satisfy
\nboth the promotes and direct recruits in an equal measure.\n<\/p>\n
     Having considered\tthese rival submissions carefully we
\nare of the opinion that there is no substance in the request
\nmade on\t behalf of  the petitioners  for  a  review  of\t the
\ndecisions in  Jaisinghani, the 1st Gupta case, the 2nd Gupta
\ncase and Jangamayya (supra).\n<\/p>\n
     Certain historic  facts have  to be borne in mind while
\nconsidering the\t points raised before us. It is necessary to
\nrecall that  for nearly a decade after 1950, appointments of
\npromotes were  made far\t in excess of the quota available to
\nthem. So long as the quota rule operated, it was possible to
\nregularize their  appointments when posts within their quota
\nbecame\tavailable   in\t later\t years.\t  But\ta   somewhat
\nunprecedented ed  situation arose  by the upgrading of Class
\nII posts to Class I, Grade II,- 100 of the month January 16,
\n1959 and  114 on December 9, 1960. This massive upgrading of
\nposts brought about a collapse of the quota rule. Subsequent
\nabsorption in  posts which become available for being filled
\nup later  really means regularization of appointments, which
\nis
\n841<\/span>
\npossible provided  there is  no excessive deviation from the
\nquota rule.  A We quite appreciate that no blame can be laid
\nat the\tdoors of  the promotes\ton the\tscore that they were
\nappointed in excess of the quota available to them. Perhaps,
\ntheir appointments must even have enabled the administration
\nto tide over administrative stalemate. But the tough problem
\nwhich the  administration has  to face is that whereas it is
\nnecessary to  recognize and  protect the  claims of promotes
\nwho are\t appointed in  excess of  their quota, it is equally
\nnecessary to  ensure that  the direct recruits do not suffer
\nan undue  set back  in service\ton account  of the excessive
\nappointments of\t promotes. The conflicting claims of the two
\ncomponents of  Service, both  having an\t importance of their
\nown, have  therefore to\t be reconciled.\t It  was  with\tthat
\nobject that  the rules have been modified from time to time.
\nThe judgments  rendered by  this Court\tin matters which the
\npetitioners want  to be\t reopened show,\t without a shadow of
\ndoubt, how  every effort was made to ensure that no hardship
\nor injustice  is caused to the promotes merely because their
\nappointments exceeded their quota.\n<\/p>\n
     It\t is   not  correct  to\tsay  that  the\tjudgment  in
\nJaisinghani (supra)  was based\ton a  concession or that the
\nCourt felt  compelled to  draw\tthe  particular\t conclusions
\ntherein because\t of the\t inability or refusal of the Finance
\nMinistry to  produce the  relevant files.  The Court adopted
\nwhat it considered in the circumstances to be a satisfactory
\nand  scientific\t  method  of   ascertaining  the  number  of
\nvacancies available  for being\tfilled up.  It came  to\t the
\nconclusions that  the number;  of actual appointments should
\ndetermine the  number of  vacancies  available\twhich,\twith
\ngreat respect,\twas a  perfectly  legitimate  conclusion  to
\ndraw. In  the grey  area where\tservice rules  operate, more
\nthan one view is always possible to take without sacrificing
\neither reason  or commonsense but the ultimate choice has to
\nbe  necessarily\t  conditioned  by   several   considerations
\nensuring justice  to as many as possible and injustice to as
\nfew. We\t also find  it impossible to hold that there was any
\nerror in  the conclusions in Jaisinghani (supra) that rule 4
\nof the\tRecruitment Rules  was a  statutory rule. Subsequent
\ndecisions would\t show that  there  was\thardly\tany  dispute
\nbetween the  parties, at later stages at any rate, that rule
\n4 was a statutory rule.\n<\/p>\n
     The other\tobjections raised  against the\tjudgments in
\nthe various cases partake more or less of the same character
\nand must be overruled for similar reasons.\n<\/p>\n
     We appreciate that the promotes should not be penalized
\nfor the\t mere reasons  that those of them who were appointed
\nafter January  16, 1959\t were appointed on an officiating or
\nad-hoc basis and had clear notice that the question of their
\nseniority was still undecided. The
\n842<\/span>
\ncircumstances  attendant  upon\ttheir  appointments  cannot,
\nhowever, be  wholly over-looked\t in determining whether the,
\nconstitutional constraints have been over- stepped.\n<\/p>\n
     In regard\tto the\tindividual instances cited before us
\nas exemplifying\t the injustice caused to the Promotes, it is
\nnot scare to test the constitutionality of a service rule on
\nthe touchstone\tof fortunes  of individuals.  No matter with
\nwhat care,  objectivity and foresight a rule is framed, some
\nhardship, inconvenience\t or injustice  is bound to result to
\nsome members  of the service. The paramount consideration is
\nthe reconciliation  of conflicting  claims of  two important
\nconstituents of Service, one of which brings fresh blood and
\nthe other mature experience.\n<\/p>\n
     The counter-affidavit  dated August  31, 1973, filed in
\nthe 2nd\t Gupta case (supra) by Shri Mehra, Deputy Secretary,
\nMinistry of  Finance, shows  the  fullness  with  which\t the
\nGovernment  had\t  consulted  all  possible  interests  while
\nframing the  impugned  rules  of  seniority.  The  gamut  of
\nreasonable possibilities  is  fairly  covered  by  the\tfour
\nalternatives referred  to in  Shri  Mehra’s  affidavit.\t The
\ninconveniences and  disadvantages  flowing  from  the  first
\nthree alternatives  would be  far greater than those flowing
\nfrom the  4th. That is why the choice ultimately fell on the
\n4th alternative,  under which the seniority between Promotes
\nand direct  recruits  was  fixed  alternately  on  a  roster
\nsystem, vacancies being equally divided between Promotes and
\ndirect recruits, for the entire period from 1959 up-to-date.
\nThough the  promotes submitted in the 2nd Gupta case (supra)
\nthat the  new seniority\t rule was  unfair to them, they were
\nunable to put forward any rational alternative, a fact which
\nis noted  at page  119 of  the Report. That led the Court to
\nremark:\n<\/p>\n
\t  “They are  indeed pleased with the increase in the
\n     promotional  chances.   But  they\tare  sore  that\t the
\n     artificial rule of seniority which gave them weightage,
\n     has been  removed. They  do not  dispute  that  by\t the
\n     increase in  their ratio  in Class\t I service, a larger
\n     number of Class II officers will, in course of time get
\n     a chance  to be  appointed by  promotion  as  Assistant
\n     Commissioners. But they are sorry that their chances to
\n     be promoted  to posts higher than that of the Assistant
\n     Commissioner are  now retarded  by the  removal of\t the
\n     weightage.”<\/p><\/blockquote>\n
     This shows\t how difficult\tit is  to solve\t the jig-saw
\npuzzle of service disputes.\n<\/p>\n
     The Report of the ‘Committee on Petitions’ of the Rajya
\nSabha, howsoever sincerely motivated and fully drawn, cannot
\nbe given the
\n843<\/span>
\nimportance which  the promotes\tseem to\t attach to it. It is
\nurged that  the findings  of  the  Committee  are  authentic
\nbecause the  Finance Ministry  had made\t the relevant  files
\navailable to it. We do not think that this argument is well-
\nfounded. In  paragraph 16  of its Report, the Committee does
\nrefer to  certain files\t but those  files appear  to contain
\nsome noting  in regard\tto the\tdirect recruitment only. The
\nCommittee has  given a\ttable of comparative appointments in
\nparagraph 19  of its  Report, but  it had to speculate on an
\nimportant aspect  of the  matter, as  is shown\tby  its\t own
\nlanguage, that the table shows the number of direct recruits
\nwhich the  Government wanted  to take  and ” on the basis of
\nwhich  the   promotes  must  have  been\t given\tpromotions”.
\n(emphasis supplied).  If  indeed  the  relevant\t files\twere
\nproduced before\t the Committee,\t it would not have expressed
\nits  sense   of\t deep\tshock  and   resentment\t at   the  –
\ndisappearance of  the files.  We share\tthe concern  of\t the
\nCommittee which\t is expressed  in paragraph 32 of its Report
\nthus .\n<\/p>\n
\t  “It is  strange that many of the files which could
\n     probably have  thrown light  on the  question of excess
\n     promotion, are  reported `missing’\t or `not available’.
\n     The conclusion  is inescapable  that  these  losses  of
\n     files are\tfar  from  being  accidental.  We  can\tonly
\n     conclude that  important information  was\tdeliberately
\n     withheld from  the Supreme\t Court as  well as  from the
\n     Committee. Had the Committee been allowed access to the
\n     file relating to the Seniority Rules framed in 1973, we
\n     could have known some more facts”.\n<\/p><\/blockquote>\n
This shows that the Committee, too? had to grope in the dark
\nand indulge  in a  certain amount  of speculation on matters
\nunder its  consideration. In  the circumstances, it has done
\nas good\t a job\tas a  Committee can and we desire to find no
\nfault with its Report. But we can- not accept the submission
\npressed upon  us by  the petitioners  that  the\t Committee’s
\nReport must displace our judgments.\n<\/p>\n
     It shall  have been  noticed that\twe have\t refused  to
\nreconsider our\tdecisions not  so much\tbecause of  the view
\ntaken in  the various  cases cited  by the learned Solicitor
\nGeneral, like  Sajja Singh  v. State  of Rajasthan,(l)\tthat
\nthis Court  should not\treview its decisions too readily, as
\nbecause,  on   merits,\t we   see   no\t justification\t for
\nreconsidering the  judgments already rendered by this Court.
\nNo fresh  facts\t are  brought  to  our\tnotice,\t by  way  of
\ndiscovery of new and important evidence, which would justify
\nreconsideration of  the decisions  already rendered  by this
\nCourt after the most careful examination of the competing
\n844<\/span>
\ncontentions. The  report of  the Rajya\tSabha  Committee  on
\nPetitions shows,  as already  indicated, that  the  relevant
\nfiles are still not traceable.\n<\/p>\n
     The petitions  are accordingly dismissed but there will
\nbe no order as to costs.\n<\/p>\n
     DESAI, J.-I  have carefully  gone through\tthe Judgment
\nprepared by  My Lord  the Chief\t Justice  but  I  regret  my
\ninability to agree with the same.\n<\/p>\n
     The  history,   chronology\t  of   events,\t contentions
\ncanvassed and the three decisions of this Court disposing of
\nthe contentions have been so succinctly drawn up in the main
\njudgment  that\tits  repetition\t would\tmerely\tbe  an\tidle
\nformality. I  would, therefore,\t straightaway deal  with the
\npoints raised in these petitions.\n<\/p>\n
     The petitioners  who are  promote Income  Tax  officers
\nClass I,  Grade II,  pray for  reconsideration of  the three
\ndecisions specifically\tS.G. Jaisinghani v. Union of India &
\nO.r.s.. Bishan\tSatup Gupta  v. Union  of India & o.r.s..(2)
\n(‘1st Gupta  case’ for\tshort) and,  Bishan Sarup Gupta etc.
\netc. v.\t Union of  India &  ors. etc.  etc. (13) (‘2nd Gupta
\ncase’ for short), and to the extent the first mentioned case
\nis relied  upon in  Union of  India etc. v. Malji Jangamayya
\netc.,(4) on the following grounds;\n<\/p>\n
     1.\t   The\tconclusion that\t rule 4\t of the\t Income\t Tax
\n\t  officers (Class  l, Grade  II) Service Recruitment
\n\t  Rules\t is  statutory\tand,  therefore,  the  quota
\n\t  prescribed  by   the\tGovernment   of\t India\t for
\n\t  recruitment to  Income Tax officers Class I, Grade
\n\t  II in\t exercise of  the power\t conferred by rule 4
\n\t  would be  statutory, proceeds on an assumption not
\n\t  warranted by\tthe provisions of law bearing on the
\n\t  point and  if both rule 4 and the quota presumably
\n\t  prescribed in\t exercise of  the power conferred by
\n\t  rule\t4   are\t not  shown  to\t be  statutory,\t the
\n\t  foundation on\t which the  edifice in Jaisinghani’s
\n\t  case rests  is  knocked  out\tbecause\t it  can  be
\n\t  demonstrably established  that neither  rule 4 nor
\n\t  the quota  prescribed there under was statutory in
\n\t  character  but   was\tat  best  an  administrative
\n\t  instruction.\n<\/p><\/blockquote>\n
845<\/span><\/p>\n
     2.\t   After the Court on an interpretation of the quota
\n\t  rule\tA   held  that\tthe  quota  was\t related  to
\n\t  vacancies arising  in the  grade every  year,\t the
\n\t  conclusion reached did not conform to this finding
\n\t  but accommodated  the\t so  called  inability\t(now
\n\t  shown to be factually incorrect) of the Government
\n\t  of India  to give  information to  the Court about
\n\t  the vacancies\t in the\t grade every  year with\t the
\n\t  result that the whole calculation of spill over is
\n\t  vitiated.\n<\/p><\/blockquote>\n
     3.\t   The\tmandamus issued\t in Jaisinghani’s  case\t was
\n\t  minister pretend by the Government because even if
\n\t  the quota  was statutory  it\twas  operative\tonly
\n\t  between  1951\t  and  1956   but   the\t  Government
\n\t  interpreted the  mandamus to\tbe operative  beyond
\n\t  1956 and  upto 1967  which  misinterpretation\t has
\n\t  been pointed out in the first Gupta case.\n<\/p><\/blockquote>\n
     4.\t   In  the 1st\tGupta case  while holding  that\t the
\n\t  mandamus directing to treat the quota as statutory
\n\t  beyond 1956 was not justified yet till January 16,
\n\t  1959, the Court itself in- , directly accepted the
\n\t  quota rule  as a  guideline and treated that there
\n\t  was a spill over of 73 promotes. If rule 4 was not
\n\t  statutory and consequently the quota prescribed in
\n\t  exercise of  the  power  which  had  outlived\t its
\n\t  prescribed span  of life  in\t1956  could  not  be
\n\t  brought in  to treat any appointment as invalid on
\n\t  the ground  that there  was no  allocated post for
\n\t  those appointees  treated as\tspill  over  because
\n\t  under rule  4 itself\tthe Government\thad power to
\n\t  determine the method or methods to be employed for
\n\t  the purpose  of filling in particular vacancies or
\n\t  such vacancies  as may be required to be filled in
\n\t  during any  particular period\t and the  number  of
\n\t  candidates to be recruited by each method.\n<\/p><\/blockquote>\n
     5.\t   The\taction of  the Government  in upgrading\t 214
\n\t  posts between\t 1959 and  1962 from Class II, Grade
\n\t  III to  Class I. Grade II was not open to question
\n\t  as at\t that stage there was no quota rule and rule
\n\t  4 enabled  the Government to make recruitment from
\n\t  either of  the two  sources  in  exercise  of\t its
\n\t  executive power.  In upholding the seniority rules
\n\t  in 2nd  Gupta case the Court introduced quota rule
\n\t  retrospectively  by\tthe  back   door  which\t  is
\n\t  impermissible\t  and\tits   operation\t  manifestly
\n\t  establishes its  utter unfairness  inasmuch  as  a
\n\t  direct recruit  not any where in the Department or
\n\t  may be a student may secure a march over a promote
\n\t  who has been working in Class 1, Grade II.<\/p><\/blockquote>\n
846<\/span><\/p>\n
     While no  doubt this  Court has constitutional power to
\nreview its decision, it is a power to be sparingly exercised
\nbecause\t any  such  review  has\t the  tendency\tto  unsettle
\nquestions which\t may have  been finally determined. In fact,
\nlearned Solicitor-General  appearing for  the Union of India
\nwarned us  that the credibility of this Court is at stake if
\nit goes\t on re-opening and reviewing propositions which have
\nbeen finally  determined by this Court. Whose credibility is
\nat  stake   would  be  presently  pointed  out\tbecause\t the
\nexamination of\tthis ugly  aspect could\t have been spared if
\nsuch  a\t  contention  was   not\t canvassed.  Repeatedly\t the
\nGovernment of  India kept  back\t material  from\t this  Court
\nfiling affidavit  after affidavit  showing its\tinability to
\nprovide such  important information on which the decision of
\nthe Court  would turn even though it can now be demonstrably
\nestablished that such mate rial and information was with the
\nGovernment. If the Government of India Had not withheld such
\nmaterial  information’\t which\thas  been  rather  adversely
\ncommented upon\tnot by the Court but by the Legislature, the
\ncredibility of\tthe department\twould be  exposed. Reference
\nmay be\tmade in\t this  connection  to  the  49th  Report  of
\nCommittee on  Petitions presented  on January  9,  1976,  to
\nRajya Sabha  Secretariat, set  up to  dispose of  a petition
\nfiled by  one R.C.  Pandey,  General  Secretary,  All  India
\nFederation of  Income Tax  Gazetted  Services  Associations,
\npraying for  repeal of\tthe Income  Tax\t officers  (Class  I
\nService) (Regulation  of Seniority) Rules, 1973, and for the
\nframing of  fresh seniority  rules in  lieu  thereof.  While
\ndisposing of this petition, the observation pertinent to the
\npoint under discussion may be extracted:\n<\/p>\n
\t  “The Committee  is shocked at the pleas of loss of
\n     vital records  taken by the administration. In response
\n     to the committee’s requests relating to important files
\n     the  administration  has  taken  a\t similar  plea.\t The
\n     Committee asked  for a  file which\t could possibly show
\n     the correct position on the question whether the 80: 20
\n     quota during  the period  1945-50 was really operative.
\n     The file is reported missing. Another file reported mis
\n     sing is that relating to the framing of the recruitment
\n     rules, 1945.  The file  relating to  Shri\tR.C.  Dutt’s
\n     affidavit (filed  in Jaisinghani’s\t case) is  also\t not
\n     available. Even  the very\trecent file  relating to the
\n     framing of\t Seniority Rules,  1970, is reported as ‘not
\n     available’. On  our insistence  they  have\t produced  a
\n     thick sheaf  of papers said to be ‘reconstructed file’.
\n     It is  strange that  many\tof  the\t files\twhich  could
\n     probably have  that own light on the question of excess
\n     promotion, are  reported ‘missing’\t or ‘not available’.
\n     The conclusion  is Inescapable  that  these  losses  of
\n     files are far from being accident. We can only
\n847<\/span>
\n     conclude that  important information  was\tdeliberately
\n     withheld\tfrom the  Supreme Court\t as well as from the
\n     Committee”.<\/p><\/blockquote>\n
\t\t\t\t\t (emphasis supplied)
\nOn these  observations the  credibility submission would not
\nonly stand  squarely answered,\tbut need  not deter  us from
\ngoing into the points made in these petitions.\n<\/p>\n
     However, this  Court does\tnot lightly undertake review
\nof its\tdecisions, more\t especially where conflicting claims
\nhave been  settled by  a decision of the Court and the whole
\ngamut  may   have  to  be  gone\t through  over\tagain  on  a
\nreconsideration of  the decision.  The approach of the Court
\non a  plea of  reconsideration has  been spelt\tout in Sajan
\nSingh  v.   State  of\tRajasthan,(l)  where   a  plea\t for
\nreconsideration of the decision of this Court in Sri Sankari
\nPrasad Singh  Deo v. Union of India & State of Bihar,(2) was
\nrepelled observing as under:\n<\/p>\n
\t  “It was,  however,  urged  before  us\t during\t the
\n     course of\tthe hearing  of these writ petitions that we
\n     should reconsider\tthe matter  and review\tour  earlier
\n     decision in  Sankari Prasad’s case. It is true that the
\n     Constitution does\tnot place  any\trestriction  on\t our
\n     powers to\treview our  earlier  decisions\tor  even  to
\n     depart from  them and  there can  be no  doubt that  in
\n     matters relating  to  the\tdecision  of  constitutional
\n     points  which   have  a   significant  impact   on\t the
\n     fundamental rights of citizens, we would be prepared to
\n     review our\t earlier decisions in the interest of public
\n     good. The\tdoctrine of stare decisions may not strictly
\n     apply in  this context  and  no  one  can\tdispute\t the
\n     position that the said doctrine should not be permitted
\n     to perpetuate  erroneous decisions\t pronounced by\tthis
\n     Court to the detriment of general welfare. Even so, the
\n     normal principle  that  judgments\tpronounced  by\tthis
\n     Court would  be final,  cannot be\tignored\t and  unless
\n     considerations  of\t  a   substantial   and\t  compelling
\n     character make it necessary to do so, we should be slow
\n     to doubt  the correctness\tof previous  decisions or to
\n     depart from them”. G
\nSimilarly, in  the Keshav  Mills Co. Ltd. v. Commissioner of
\nIncome\tTax   Bombay  North,<\/a>(3)\t  it  was  held\t that  while
\nexercising inherent  power  to\treconsider  and\t review\t its
\nearlier decisions  this Court would naturally like to impose
\ncertain reasonable limitations and would be reluctant
\n848<\/span>
\nto entertain  plea for\treconsideration and  review  of\t its
\nearlier decisions,  unless it  is satisfied  that there\t are
\ncompelling and\tsubstantial reasons  to do so. It is general
\njudicial  experience   that  in\t matters  of  law  involving
\nquestions  of\tconstruing   statutory\t or   constitutional
\nprovisions, two views are often reasonably possible and when
\njudicial approach  has to  make a  choice  between  the\t two
\nreasonably possible views, the process of decision-making is
\noften very  difficult and  delicate. In\t deciding whether  a
\nreview is necessary when two views are possible it would not
\nnecessarily be\tan  adequate  reason  for  such\t review\t and
\nrevision  to   hold  that  though  the\tearlier\t view  is  a
\nreasonably possible  view, the\talternative  view  which  is
\npressed on  the subsequent  occasion is more reasonable. The
\nCourt’s discretion  should be  guided by  such consideration
\nwhether in  the interest  of public  good or  for any  other
\nvalid or compulsive reasons it is necessary that the earlier
\ndecision should\t be revised.  This view\t was re-affirmed  in
\nManganese  Ore\t (India)  Ltd.\tv.  The\t Regional  Assistant
\nCommissioner of Sales Tax, Jabalpur.<\/a>(l)
\n     Bearing these  principles in  mind, it  is necessary to
\nexamine whether\t a case\t for reconsideration  of  the  three
\nearlier decisions is made out by the petitioners or not.<\/p><\/blockquote>\n
     Jaisinghani’s case proceeds on a concession that rule 4
\nand the\t quota prescribed by the Government referable to the
\npower conferred\t by rule 4 were statutory in character. This
\nis borne  out by  the observation  of the Court which may be
\nextracted:\n<\/p>\n
\t  “It is  not disputed that rule 4 of the Income Tax
\n     officers, Class  I, Grade\tII Service Recruitment Rules
\n     is a  statutory rule and there is a statutory duty cast
\n     on the  Government under  ‘ this  Rule to determine the
\n     method or\tmethods to  be employed\t for the  purpose of
\n     filling the  vacancies or\tnumber of  candidates to  be
\n     recruited by each method”.<\/p><\/blockquote>\n
     Income Tax\t Service was  reconstituted on September 29,
\n1944 The  Government of India classified the existing Income
\nTax Service as Class I and Class II. The scheme provided for
\nrecruitment of\tIncome Tax officers Class I, Grade II partly
\nby promotion  and partly  by direct  recruitment. The scheme
\nwas set\t out in\t the Government of India, Finance Department
\n(Central Revenues)  letter dated  September  29,  1944.\t The
\nquota prescribed therein has undergone a revision at a later
\ndate. It  thus appears\tthat the rules were pre-constitution
\nRules and,  therefore, their  source must  be traced  to the
\nGovernment of  India  Act,  1935  (‘1935  Act’\tfor  short).
\nSection 241 of the.\n<\/p>\n
849<\/span><\/p>\n
1935 Act  made provision  for recruitment  and conditions of
\nservice. A  bare perusal  of the section would show that the
\npower to  make\tappointments  in  the  case  of\t service  of
\nFederation and\tposts in  connection with the affairs of the
\nFederation was\tconferred on  the Governor-General  or\tsuch
\nperson as  he may  direct. The\tpower to  make rules in this
\nbehalf was  conferred by  sub-s. (2) on the Governor-General
\nor by  some person  or persons\tauthorized by  the Governor-
\nGeneral to Make the rules for the purpose. On an examination
\nof the\trules under  discussion no  material was  placed  on
\nrecord to  show that  the rules\t were  made  either  by\t the
\nGovernor-General or  such person  as authorized\t by him.  As
\npointed out  a little  while ago, the rules were made by the
\nFinance Department  and no  material was placed to show that
\nthe person or the persons who made the rules were authorized
\nby the\tGovernor-General under\ts. 241(2) of the 1935 Act in
\nthis behalf.  The assumption made, therefore, that rule 4 of
\nthe Rules  was statutory  and that  the quota  prescribed in
\nexercise of the power conferred by rule 4 must be statutory,
\nis ill-\t founded. This\tknocks out  the entire foundation of
\nthe judgment  of this  Court in\t Jaisinghani’s case  because
\nthis Court proceeded to hold that as the quota was statutory
\nany recruitment\t made in  excess of  the quota\tin any given
\nyear would  be invalid\tand at\tbest can  be regularized  by
\nrelegating such\t excess appointments to the quota next year.
\nIf rule\t 4 and the quota referable to the power conferred by
\nrule  4\t  were\tnot  statutory\tbut  were  merely  executive
\ninstructions, its violation would not render any appointment
\nin excess  of it invalid, but at best would be irregular and
\nin this\t case on a plain reading of rule 4 it would not even
\nbe irregular.\n<\/p>\n
     In P.C.  Sethi &  Ors. v.\tUnion of  India & Ors.,<\/a> this
\nCourt held that in the absence of any statutory rules it was
\nopen to the Government in exercise of its executive power to
\nissue\tadministrative\t  instructions\t with\t regard\t  to
\nconstitution and  reorganization of service as long as there
\nis no  violation of  Articles 14 and 16 of the Constitution.
\nIf the\tparent rule  4 enables\tthe Government\tto prescribe
\nmethod to  be employed\tfor the\t purpose of  filling in\t any
\nparticular vacancy  {. Or  such vacancies as may be required
\nto be  filled in during any particular period and the number
\nof candidates  to be  recruited by each method and if the so
\ncalled quota  is not  statutory but  merely a guideline, the
\nGovernment whenever  making appointment\t would be  acting in
\nexercise of power conferred by rule 4 which leaves it to the
\ndiscretion of  the Government  to decide  from\twhat  source
\nrecruitment should  be made  and what must be the quantum of
\nvacancies that\tmust be\t filled in  at a given point of time
\nand such appointment could not be said Hi to be invalid.\n<\/p>\n
850<\/span><\/p>\n
     Alternatively,  even   if\tthe   assumption   made\t  in
\nJaisinghi’s case  that rule 4 and the quota referable to the
\nexercise of  power conferred by rule 4 is unquestionable yet
\nwhen this  Court held  that the\t quota\tis  related  to\t the
\nvacancies, the decision proceeding on an incorrect plea that
\nthe information\t about the  number of vacancies in a year is
\nnot available, is unsustainable for two reasons, namely, (I)
\nthat the  files are  now produced; and (2) in the absence of
\ninformation about  the vacancies  available the\t Court could
\nnot have  invalidated any appointment on the assumption that
\nappointment from the source of promotes was in excess of the
\nquota. On  a plain  reading of\trules 3,  4 and S it appears
\ncrystal clear that the quota was related to vacancies and at
\none stage that was accepted. On this finding unless the fact
\nsituation is  clearly established  showing vacancies year to
\nyear it\t would be  impossible to hold that in any year there
\nwas in\texcess in  either  source.  Suppose  there  were  90
\nvacancies in  a year  and the  quota was  66-2\/3 for  direct
\nrecruits and  33-1\/3 for  promotes, it\twould be open to the
\nGovernment to  promote 30  persons irrespective\t of the fact
\nwhether 60 direct recruits have become available or not. The
\nassumption made\t that the  recruitment made  in a given year
\nfrom both  the sources\twould furnish  information about the
\nvacancies in a year would lead to a rather unfair conclusion
\ninasmuch as  the action\t of the\t Government in\tacting in  a
\ncertain manner\twithout due  regard to\tthe quota rule would
\nwork  hardship\ton  appointees\teven  though  on  a  correct
\ncalculation of\tvacancies the  appointments may be valid and
\nlegal.\n<\/p>\n
     The mandamus issued in Jaisinghani’s case was as under:
\n\t  “We are  accordingly of  the opinion that promotes
\n     from class\t II, grade  III to class I, grade II service
\n     in excess\tof the\tprescribed quotas  for each  of\t the
\n     years 1951\t to 1956  and on  wards have  been illegally
\n     promoted and the appellant is entitled to a writ in the
\n     nature of\tmandamus commanding  respondents 1  to 3  to
\n     adjust  the   seniority  of  the  appellant  and  other
\n     officers similarly\t placed like  him and  to prepare  a
\n     fresh seniority  list  in\taccordance  with  law  after
\n     adjusting the  recruitment for  the period 1951 to 1956
\n     and  onwards   in\taccordance   with  the\t quota\trule
\n     prescribed in the letter of the Government of India No.
\n     F. 24(2)-Admn.  I.T.\/51 dated  October  18,  1951.\t We,
\n     however, wish to make it clear that this order will not
\n     affect such  class II  officers who have been appointed
\n     permanently as  Assistant Commissioners  of Income-Tax.
\n     But  this\torder  will  apply  to\tall  other  officers
\n     including those who have been ap-\n<\/p>\n
851<\/span><\/p>\n
     pointed   Assistant   Commissioners   of\tIncome\t Tax
\n     provisionally  pursuant  to  the  orders  of  the\tHigh
\n     Court”.\n<\/p>\n
     The Government  understood the mandamus as covering the
\nwhole period  from 1951 to 1967. When this was questioned in
\nthe 1st\t Gupta case,  this Court  held that  the quota\trule
\nProprio vigor  operated between\t 1951 to  1956 and  if there
\nwere promotions\t in any\t year in  excess of  the quota those
\npromotions were\t merely invalid\t for that year but they were
\nnot invalid  for all  time and\tthey could be regularized by
\nbeing  absorbed\t in  the  quota\t for  the  later  years.  So
\nadjusting the quota at any rate upto 1956, the quota rule on
\nits  own  strength  evaporated\tbecause\t it  was  to  be  in
\noperation for a period of five years and no fresh quota rule
\nwas issued  by the  Government. Therefore, after 1956 rule 4
\nremained in force in all its rigour and was not hedged in by
\nany  quota.   Rule  4\tpermitted  the\tGovernment  to\tmake
\nrecruitment  from   either  source   without  lettering\t its
\ndiscretion by  any quota  rule which  it was  not  bound  to
\nprescribe. On  January 16,  1959, Government in the ministry
\nof Finance informed the commissioners of Income tax that the
\nPresident had\tsanctioned  the upgrading  to class I of 100
\ntemporary  Posts  of  Income  Tax  officers,  Class  II.  On
\nDecember 19,  1960, there was further upgrading of 114 posts
\nfrom class  II to  class I.  Between 1959 and 1962 these 214
\nposts were filled in by promotes. Now, in the Ist Gupta case
\nthis court  held that  even though the quota rule expired in
\n1956, yet the Government of India adopted it as a guideline.
\nMay be, it  may be so. Does any appointment in breach of the
\nguideline neither statutory nor even having the fragrance of
\nany executive  instruction become  invalid more\t so when the
\nGovernment had\tpower to make appointment from either source
\nuninhibited by\tany quota  rule under rule 4 ? Yet the Court
\nfound that  between 1956  and 1959 when 100 pasts came to be
\nupgraded there\twas a spillover of 73 persons and because of
\nthe huge departure from guidelines the weightage rule giving
\nseniority to  the promotes  by 2- 3- years was crushed under
\nits own\t debris. Again,\t with respect  it must\tbe confessed
\nthat rule 4 is overlooked or bypassed when saying that there
\nwas a  spillover of  73 promotes  between 1956 and 1959. Nor
\ncould it be said that the upgrading of 214 posts and filling
\nthem up\t by promotes would be in any way even irregular much
\nless invalid  because rule 4 enables Government to draw from
\neither source.\n<\/p>\n
     In the  2nd Gupta\tcase in\t view of the decision in 1st
\nGupta case  a fresh  seniority rule  was prepared and it was
\nmade retroactive  from 11  January 16,\t1959. If,  the inter
\nalia  provides\tthat  the  relative  seniority\tamongst\t the
\npromotes and the direct recruits shall be in the ratio of
\n852<\/span>
\n1: 1  and the  same shall  be so determined and regulated in
\naccordance with\t a roster  maintained for the purpose, which
\nshall follow the following sequence, namely:\n<\/p>\n
     (a) Promote;\n<\/p><\/blockquote>\n
     (b) direct recruit,\n<\/p><\/blockquote>\n
     (c) Promote,\n<\/p><\/blockquote>\n
     (d) direct recruits, and so on.<\/p><\/blockquote>\n
     This method of roster undoubtedly introduces a quota by
\nthe back  door. Once  a roster\tis introduced Promote direct
\nrecruit, Promote  direct recruit  etc. even if some promotes
\nhave come  in a\t bulk and  if at  a later  date some  direct
\nrecruits are  appointed in  bulk, while\t preparing roster an
\nearlier date promote will have to yield his place to a later
\ndate direct  recruit. Bluntly  translated it  means that the
\ndirect recruit\twho was\t never in  service when\t promote was
\npromoted, probably  he may  be a  student. May be he may not
\nhave even  passed the  competitive examination,\t yet he\t may
\ncome into the picture and challenge one who has already been
\nserving\t in  the  Department  for  a  number  of  years.  To
\nillustrate, in\tthe  new  seniority  list  prepared  by\t the
\nGovernment pursuant  to the  order made by this Court in the
\n1st Gupta  case and upheld by this Court in 2nd Gupta case a
\npromote of  1962 will  have to\tyield his  place to a direct
\nrecruit of  1966. With\tutmost hesitation  I must  say\tthat
\nservice jurisprudence hardly permits a situation where a man
\nnot in\tservice comes  and challenges  some thing  which has
\nbeen done much before he came in to service and gets such an
\nadvantage which\t on the face of it appears to be unfair. But
\napart from  this, even\tin 1959\t there was no quota rule and
\nassuming that  the old\tservice rule giving weightage to the
\npromotes crushed  under\t that  weight  of  large  number  of
\npromotes being\tpromoted,  it  would  not  be  open  to\t the
\nGovernment to so prepare a fresh seniority list which cannot
\nbe given  effect to  unless a  roster  is  introduced  which
\nintroduces quota  by the back door and which is so unfair in
\nits operation that promotes of 1962 will have to yield place
\nto direct recruits of 1966. Now under the old weightage rule
\npromotes were  given a\tweightage for  service of  2-3 years
\nover direct  recruits because direct recruits were unable to
\nundertake regular  assessment work for a period of 2-3 years
\nwhen they  were more  or less  under training while promotes
\nhave been  doing this  work for\t a number of years and their
\nexperience is rejected in the weightage. The whole thing now
\nappears in  the reverse\t gear in  that an uninitiated direct
\nrecruit takes  precedence over\tan experienced\tpromote. The
\nunfairness of the new rule is writ large on the face of it.\n<\/p>\n
853<\/span><\/p>\n
     This  rule\t  violates  another   important\t rule\twell
\nrecognised in  the service jurisprudence that in the absence
\nof  any\t  valid\t rule\tof  seniority\tdate  of  continuous
\nofficiation provides a valid rule of seniority. This rule is
\ncompletely crucified under two unsustainable assumption that
\na quota rule having guideline sanction is made imperative in
\ncharacter and  assumed to be in force between 1956 and 1959,
\nand  that  even\t though\t Government  in\t exercise  of  power
\nconferred by  rule 4  for its  own  necessity  promoted\t 214
\npromotees to the upgraded posts yet they must yield place to
\nsome future  direct recruits  who may come to the department
\nat a  later date.  This Court sustained the position holding
\nthat these  were ad  hoc appointments,\tand  there  were  no
\nregular posts  for those  promotees.  This  approach  wholly
\noverlooks the effect and the force of rule 4.\n<\/p>\n
     Certainty and  continuity demand that this Court should
\nnot reopen  settled decisions  or  reopen  closed  questions
\nunless under a compelling necessity. It may be that the fate
\nof Income  Tax officers,  promotees and direct recruits, may
\nrest with  the three  decisions of this Court. Unfairness to
\nsome of\t them may  itself not  provide a good and compelling
\nreason\tfor   reopening\t and  reconsidering  the  decisions.
\nTherefore, if that were the only point for our consideration
\nI  would   have\t unhesitatingly\t agreed\t with  the  decision
\nrendered by  My Lord  the Chief\t Justice.  But\tthere  is  a
\nfurther compelling  necessity which  impels me\tto pen these
\nfew lines.\n<\/p>\n
     Jaisinghani and  the two  Gupta cases  are being quoted
\ntimes without  number before  this Court  for the principles
\nenunciated  therein.   These  decisions,  therefore,  affect
\nsubsequent decisions  of this  Court as\t well  as  the\tHigh
\nCourts. And some of the principles enunciated in these three
\ncases stand  in sharp  contrast to  other decisions  of this
\nCourt and  in fact  this Court\titself felt  it necessary to
\nwarn  that  it\tmay  become  necessary\tto  reconcile  these
\nconflicting decisions.\tIn this\t connection reference may be
\nmade to\t N.K. Chauhan  and ors. v. State of Gujarat and ors.
\nwhere this  Court after\t referring to  two sets of decisions
\ncharting two different courses, observed as under:\n<\/p>\n
\t  “After all,  we live\tin a  judicial system  where
\n     earlier curial  wisdom, unless  competently over-ruled,
\n     binds the\tCourt. The  decisions cited  before us start
\n     with the  leading case  in Mervyn\tCoutindo &  ors.  v.
\n     Collector of  Customs, Bombay  and<\/a> close  with the last
\n     pronouncement in  Badami v.  State of  Mysore and\tors.
\n     This time-span  has seen  dicta go zigzag but we see no
\n     difficulty
\n854<\/span>
\n     in tracing a common thread of reasoning. However, there
\n     are divergencies  in the  ratiocination between  Mervyn
\n     Coutindo (supra)  and Govind  Dattatray Kelkar and ors.
\n     v. Chief  Controller of  Imports and  Exports and ors.<\/a>,
\n     on the one hand and S. G. Jaisinghani v. Union of India
\n     (supra) Bishan  Sarup Gupta  v. Union  of India (supra)
\n     Union of  India and ors. v. Bishan Sarup Gupta<\/a> , and A.
\n     K. Subraman  and ors.  v. Union  of India<\/a> on the other,
\n     especially on  the\t rota  system  and  the\t year  being
\n     regarded as a unit, that this Court may one day have to
\n     harmonize the discordance unless Government wakes up to
\n     the need  for properly drafting its service rules so as
\n     to\t eliminate   litigative\t waste\t of  its   servants’
\n     energies”.<\/p><\/blockquote>\n
     It is  not for  a moment  suggested and  I say  so with
\nutmost respect\tthat the  aforementioned three decisions are
\nincorrect.  In\t the  light  of\t the  materials\t now  placed
\nespecially the\tfiles which were withheld from the Court and
\nthe Committee  the only\t view that  I express is that enough
\ncompelling and\tnecessary material has been placed on record
\nmaking out  a  strong  case  for  reconsideration  of  these
\ndecisions. Accordingly, in my view the present two petitions
\ndeserve to be placed before a larger Bench to be constituted
\nby the Hon’ble Chief Justice of India.\n<\/p>\n
\t\t\t   ORDER
\n     In view  of the majority opinion the Writ Petitions are
\ndismissed with no order as to costs.\n<\/p>\n
S.R.\t\t\t\t\tPetitions dismissed.\n855<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980 Equivalent citations: 1980 AIR 2056, 1980 SCR (3) 811 Author: Y Chandrachud Bench: Chandrachud, Y.V. (Cj), Untwalia, N.L., Kailasam, P.S., Desai, D.A., Venkataramiah, E.S. (J) PETITIONER: KAMAL KANTI DUTTA AND ORS. Vs. RESPONDENT: UNION OF INDIA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-184252","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kamal-kanti-dutta-and-ors-vs-union-of-india-and-ors-on-23-april-1980\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980 - 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